joined by Justice Garwood, dissenting.
The majority opinion recognizes that if the action of the trial judge, first, in entering the stay order and, secondly, in refusing to grant a severance as requested by relator is discretionary when the mandamus should not be granted except for a clear abuse of discretion by the trial court. In this case we are overturning actions of the trial court on matters which are wholly discretionary and not contended to be ministerial, and holding, as a matter of law, that the facts before the trial judge could lead to no other conclusion than that the stay should not have been granted, and also that the cause of action should have been severed.
Regarding the stay under 50 U.S. C. A. Appendix, Sec. 521, Mr. Justice Jackson discusses this Soldiers and Sailors Relief Act in the case of Boone v. Lightner, 1943, 319 U. S. 561, 87 L. Ed. 1587, 63 Sup. Ct. 1223, 1226. In that case, a stay had been refused by the trial judge. In discussing whether or not the Act conferred discretion on the trial judge, the Court said: “* * * The legislative history of its antecedent [Act of 1918] shows that this clause was deliberately chosen and that judicial discretion thereby conferred on the trial court instead of rigid and undiscriminating suspension of civil proceedings was the very heart of the policy of the Act. * * *” (Emphasis added). In a footnote of the opinion, Mr. Justice Jackson quotes from committee hearings and floor discussions at the time of the passage of the Act to sustain his contention that the trial court has a wide discretion. Portions of such record are as follows: *55“* * * Most of the actions sought to be brought against soldiers will be for small amounts and will thus be in a local court where the judge, if he does not already know, will be in a favorable position to learn whether or not the defendant who seeks the benefit of the statute has really been prejudiced by his military service. * * *” 319 U. S. 566, 567; 87 L. Ed. (2nd col., bottom p. 1591). Again, “* * * the next material difference between this law and the various State laws is this, and in this I think you will find the chief excellence of the bill which we propose : Instead of the bill we are now considering being arbitrary, inelastic, inflexible, the discretion as to dealing out even-handed justice between the creditor and the soldier, taking into consideration the fact that the soldier has been called to his country’s cause, rests largely, and in some cases entirely, in the breast of the judge who tries the case.” I believe the above authorities are sufficient to show whether or not a stay should be granted is within the discretion of the trial judge and the granting or refusing of a stay is not merely a ministerial act.
I think the law is well settled that for an action of a trial judge in a matter of this character to be “a clear abuse of discretion,” such action must amount to action wholly through fraud, caprice, or by a purely arbitrary decision, and without reason. King v. Guerra, 1928, 1 S.W. 2d 373 (8), wr. ref. However, the same authority says:
“But this exception is restricted in its application to cases in which the offending board acts in the absence of any fact or condition supporting or tending to support its conclusion in the matter acted upon. The judicial function in the expected cases is limited to the inquiry as to whether there can be any controversy over the facts or conditions upon which the board acted, or which it could properly take into consideration in its deliberations. If such controversy is possible, if there can be any reasonable doubt concerning the existence or nonexistence of those facts or conditions or their effect upon the public good, then the courts are quite powerless to revise or disturb the action of the board. Sansom v. Mercer, 68 Texas 492, 5 S.W. 62, 2 Am. St. Rep. 505; Riggins v. Richards, supra. [79 S.W. 84, Tex. Civ. App.] To paraphrase the language of Judge Gaines in the Sansom Case:
‘If there is any controversy as to the existence of the facts upon which the board denied the requested permit, the function of the board was discretionary, and it cannot be compelled to grant the permit/
*56“Judge Key said in the Riggins Case that: ‘Human wisdom has never devised a system of government that did not vest final authority in one or more persons; and when that authority involves discretion, and has been exercised, the courts are powerless to grant relief, however unwisely or unjustly it may have been done.’ 79 S.W. 86.”
The same law applies to court action as to action by a board.
I am convinced that this Court can not say, under the facts of this case, that the trial judge, in his rulings acted “wholly through fraud, caprice, or by a purely arbitrary decision, and without reason.” King v. Guerra has an excellent discussion of the right to a mandamus in causes such as this.
I shall next discuss the matter of a severance. The majority opinion recognizes that the granting of a severance is discretionary with the trial court. In addition to the authorities there cited, I would add:
“The trial court has great discretion upon questions of joinder of parties and causes of action, and of consolidation or separation of causes, more especially under Rules 37 to 43, 97, and 174. Wilson v. Ammann & Jordan, Civ. App. 1942, 163 S.W. 2d 660, error dismissed; Simmons v. Wilson, Civ. App. 1949, 216 S.W. 2d 847; Waller Peanut Co. v. Lee County Peanut Co., Civ. App. 1949, 217 S.W. 2d 183; Gowan v. Reimers, Civ. App 1949, 220 S.W. 2d 331, ref. n.r.e.; McGee v. McGee, Civ. App. 1951, 237 S.W. 2d 778, ref. n.r.e.; Utilities Natural Gas Corp. v. Hill, Civ. App. 1951, 239 S.W. 2d 431, ref. n.r.e.; Associated Growers v. Smith, Civ. App. 1952, 244 S.W. 2d 348; Barbee v. Buckner, Civ. App. 1954, 265 S.W. 2d 869, ref. n.r.e. * * *” Footnote 10, Rule 174, Vernon’s Annotated Texas Rules of Civil Procedure.
Now let us examine the situation of the case before the court at the time he made his rulings which are sought to be overthrown by mandamus. Relator had filed a suit on the day Michael became 21 years of age against Michael and others alleging, among other things, that “* * * Michael should not receive his share of the trust estate, because relator expects to file proper income tax returns and Michael should pay his share of the' taxes and expenses, including those incurred by relator in filing and prosecuting the suit. Relator prayed for judgment against each defendant for possession of any of the trust property held by the latter and for the value of the property of the trust that each defendant, being liable therefor, failed to deliver, that the-*57defendants be enjoined from delivering any of the trust estate to Michael, and that Michael be enjoined from receiving or disposing of any of the trust property.” To this Michael answered that “he has in his possesison, subject to such limitation as exists by reason of the suit,” (emphasis added) all of his estate theretofore handled by his father. Michael thereafter filed a cross-action against the Bank. This cross-action was filed only after Michael had filed a request to be permitted to bring in the Bank, only after an answer by relator opposing such request had been filed and only after a hearing was had before the court and the entry of an order permitting Michael to bring in the Bank. This answer and cross-action was amended on December 29, 1954, and Michael alleged that relator is not entitled to possession of Michael’s estate, and asked that relator be removed as trustee over the estate; that the depository Bank has possession of a substantial amount of Michael’s estate and is demanding a release from all of the beneficiaries under the will before it will deliver to Michael his estate, and that such action on the part of the Bank constitutes a cloud on Michael’s property, and prayed that relator be denied possession of, and the Bank be required to relinquish control over Michael’s property. Apparently the next pleading filed was Michael’s request for a stay under the Soldiers and Sailors Relief Act. Michael’s father joined in such request. On January 18, 1955, Michael further sunplemented his cross-action by alleging a cross-action against relator for §12,500.00 damages by virtue of certain actions of relator. Michael alleged relator had caused certain companies in which Michael had stock to withhold dividends from Michael on the stock Michael owned and that relator’s suit had prevented Michael from selling and disposing of certain stocks he desired to sell. On January 21, 1955, relator amended his petition in which he dismissed his suit against Michael with prejudice, and sought no relief of any character against Michael.
The will of R. M. Womack, under which relator claimed the rights asserted in his original and amended petition, provided that W. B. Womack hold in trust for Michael and his brother and sister one-third of R. M. Womack’s estate. It also provides that in the event W. B. Womack “predeceases me and/or if he predeceases my said son David R. Womack, then, and in that event” David R. Womack shall carry out the terms of the will, as trustee. It also provides, in the case of Michael and the other two children of the testator’s deceased daughter, Edna Patton, that testator, the City National Bank of Sulphur Springs and W. B. Womack had handled the Edna Patton estate to the best of their ability and with no profit to any one of them; that *58if any of the Patton children attempt to make any claim against the Bank, or testator, or W. B. Womack, then such child or children shall receive from testator’s estate the sum of one dollar each. It further provides that as each Patton child reaches the age of 21 years, and is “about to receive a portion of my estate under this will such child shall execute a valid release to said City National Bank of Sulphur Springs and my son, and to any officer of said Bank arising out of the handling of the estate of my deceased daughter. [Edna Patton].” Three days later on January 24, 1955, the Bank filed its original answer and cross-action to Michael’s cross-action against it and made all parties to the suit cross-defendants. In its pleading, the Bank asked that the will of R. M. Womack be construed; that various parties have made demands on the Bank for delivery of its deposits and fund of the R. M. Womack estate; that the Bank is unable to determine its liability under the R. M. Womack will when considered in connection with the estates of the three Patton children of whom Michael is one.
Among other things the Bank alleged that this cross-plaintiff has participated in the affairs of Rufus Marvin Womack’s estate and that this cross-plaintiff should receive certain releases at certain times during the administration of the estate of Rufus Marvin Womack, and the nature of the releases, and of the demands which have been made on this bank are not clear. This cross-paintiff is unable to make construction of the will of Rufus Marvin Womack, deceased, and is unwilling to determine the extent of its liability, if any, created by said will, when considered in connection with the estates of Michael Alfred Patton, Kathleen E. Patton and Robert M. Patton. This cross-plaintiff, therefore, invokes the “Provisions of the Declaratory Judgment Act of Texas,” as to construction of wills, and therefore, requests this court to construe said will of Rufus Marvin Womack, deceased, and answer the following questions: (1) Did the will of the said Rufus Marvin Womack pass to the three Patton children, to-wit, Michael Alfred Patton, Kathleen E. Patton and Robert M. Patton, jointly a l/3rd interest in his estate? (2) Did the will of Rufus Marvin Womack create and set up a valid trust in W. B. Womack over the property bequeathed therein unto Michael Alfred Patton, Kathleen E. Patton and Robert M. Patton? (3) If the will set up a valid trust of said property in W. B. Womack, did W. B. Womack have the authority to deliver unto the Patton children their interest therein? (4) Did the will of Rufus Marvin Womack create and set up a valid trust in David R. Womack over the property bequeathed therein unto Michael Alfred Patton, Kathleen E. Pat*59ton and Robert M. Patton, at the death of W. B. Womack? (5), (6) and (7) inquires whether each of the Patton children now is entitled to receive its inheritance under the R. M. Womack will. The Bank further asks the court to determine and adjudicate the property of the R. M. Womack estate, if any, controlled thereby. The Bank asks that after the will has been construed, the Court enter proper orders and judgments releasing the Bank from liability as ¡to the depositor of funds of the R. M. Womack estate; and “by virtue of any connection which it might have had regarding the funds belonging to any one of the original parties to this law suit, including the cross defendants herein.”
This is clearly a suit to construe the will of R. M. Womack brought by a party named in the will as having been interested in handling a part of the estate. Further, the Bank is a beneficiary under the will in that the will requires a release from the Patton children as a condition precedent to each child receiving its estate. Further, the will sought to protect the Bank against litigation in providing that if any of the Patton children should make a claim against the Bank, such child should receive only $1.00 from the R. M. Womack estate. Surely it cannot be contended that a pleading of this nature involves only matters between Michael and the Bank. Nor can it be contended that relator, as trustee and as beneficiary, and Michael as beneficiary, and all other beneficiaries are not only proper parties but necessary parties to the Bank’s cross-action. In view of all the complications of the facts in this case, surely this pleading on the part of the Bank was a very wise and necessary one, and the Bank is entitled to make its proof in order to obtain a judgment fixing its rights and liabilities, not only to Michael, but also to all trustees, estates and beneficiaries. The Bank, as beneficiary under the R. M. Womack will, had a right to bring the suit for construction of the will. 44 Tex. Jur. 76, Sec. 197. I think this is a fundamental proposition requiring no further authority. The order of the court permitting Michael to bring in the Bank on his cross-action was an interlocutory order, and can be reviewed only by an appeal in the main case after a final judgment has been entered in the trial court. Mandamus cannot be used in lieu of an appeal. 28 Tex. Jur. 530, Sec. 10. For the purposes of this mandamus proceeding such order permitting Michael to bring in the Bank is valid, subsisting, and not subject to attack. The Bank, being properly made a party to the suit, and being a beneficiary under the will, could *60legally bring the suit for construction, and for release from its liabilities under the will, and to secure its right to a release from other beneficiaries under the will, as therein provided.
In suits for the construction of a will all those who have an interest in the estate and who are named in the will as beneficiaries of substantial parts of the estate are necessary parties. “* * * This is because the necessary parties must be joined in a suit to construe a toill in order to give the court jurisdiction to enter a final judgment. 44 Tex. Jur. 766, Sec. 197; Hay v. Hay, Tex. Civ. App. 120 S.W. 1044, [no writ history] ; Goldsmith v. Mitchell, Tex. Civ. App., 1933, 57 S.W. 2d 188, [dism. w.o.j.].” (Emphasis added). Miller v. Davis, 1941, 136 Texas 299, 150 S.W. 2d 973, 136 A.L.R. 177. See also Sharpe v. Landowners Oil Ass’n., 1936, 127 Texas 147, 92 S.W. 2d 435.
Miller v. Davis, (18, 19), supra, says:
“Since we hold that the trustees * * * are necessary parties to this action in order for the court to have jurisdiction to enter final judgment construing this will, it must follow that no final judgment has been entered in this case in the district court. * * *” (Emphasis aded).
Although that suit was by an executor under a will, what was said in the case of Alexander v. Berkman, Tex. Civ. App., 1928, 3 S.W. 2d 864, wr. ref., is particularly applicable to the necessity for all parties to be joined in one and the same suit.
“* * * He [the executor] is not required to decide conflicting claims at his peril, but has a right to have such claims adjudicated in an action to which all claimants are made parties, so that all not required, and should not be required to litigate such issues with a garnishing creditor in one suit, and with the legatees and other claimants of the funds in his hands in another suit. He has a right to have all parties interested bound by a common finding of fact.”
The majority opinion indicates that it has only “sliced out” Michael and his interest from the will construction suit, and that no harm can come to the Bank by such slicing. The answer to that argument is found in the above cases wherein it is said that the court has no jurisdiction to render a final judgment unless all necessary parties are present. Any judgment rendered in either of the two suits into which the majority has sliced the Bank’s cross-action for construction would not be a final *61judgment. Not being a final judgment it could bind none of the litigants. Thus the Bank would not be protected by either one or both of the judgments entered in the severed suits. If Michael and his property can be “sliced out” for a separate suit, so could each other party’s interest be made the subject of a separate suit. This is clearly contrary to what has been the law for a long time in suits for construction of wills.
We cannot say that the trial court, under the above pleadings before him on January 25, 1955, acted in fraud, arbitrarily, through caprice, or without reason or some basis of fact, when he refused to sever the cause and also when he granted the stay order. I do not see how Michael’s rights can be severed from his cross-action against the Bank and relator, or from the cross-action of the Bank against him, relator and others so as to be tried in a separate suit between the Bank and Michael.
I am sure it is not necessary to cite authority for the proposition that relator in a mandamus proceeding must show a clear, legal right to have it issued. 28 Tex. Jur. 533, Sec. 11. Neither can we say that the trial court acted in the absence of any fact or condition supporting, or tending to support, the action taken. King v. Guerra, supra.
I would refuse the mandamus.
Opinion delivered June 6, 1956.
Rehearing overruled July 18, 1956.