dissenting.
I respectfully dissent. I do not agree with that part of this court’s opinion which denies standing to Patrick and Robert Tur-cotte in their attack upon Mrs. Sarita East’s 1960 will and its codicils. In my judgment the Turcottes have the same standing as their assignors, Marie Walker and Robert C. Putegnat. Walker and Putegnat are the herís of Mrs. East, and they also have an interest as devisees under Mrs. East’s earlier 1948 will, which might become operative if the 1960 will were invalidated. The majority recognizes that Marie Walker and Robert Putegnat had an interest and standing, but in some mysterious manner, a part of their interest and standing vanished by their assignment to the Turcottes.
Mrs. Sarita K. East executed a will in 1948, and in 1960 she made a new will. A number of codicils were later added to the 1960 will. After Mrs. East died in 1961, some 120 persons set about to prove that the 1960 will and the codicils were void because Christopher Gregory, also known as Brother Leo, had overreached Mrs. East by undue influence and fraud. That contest was tried in the probate court of Kenedy County which rendered a judgment that the 1960 will was void and which admitted the 1948 will to probate. There was an appeal to the district court. See Alice National Bank v. Corpus Christi Bank & Trust, 431 S.W.2d 611 (Tex.Civ.App.—Corpus Christi 1968), aff’d, 444 S.W.2d 632 (Tex.1969).
All of the parties who originally urged the invalidity of the 1960 will have now, we are told, made settlements in the vast estate — all, that is, except Patrick and Robert Turcotte. The majority opinion says that the Turcottes should not now be permitted to assert their rights or test the validity of the 1960 will, because it would be “inequitable and unjust to allow Patrick and Robert Turcotte to assert standing as interested parties.” The assignments that they own have not been set aside or voided by any legal proceeding and the majority opinion confirms their validity. In my opinion, the Turcottes have standing, and it is inequitable and unjust to deny them their day in court to make proof that Mrs. East was overreached when she made the 1960 will.
The Turcottes assert their standing on two independent bases, either of which en*691titles them to contest the 1960 will. They first assert that they are the sons of Edgar Turcotte who was a beneficiary under Mrs. East’s 1960 will. Edgar Turcotte received substantial benefits under the 1960 will, but the Turcottes say that he did so without full knowledge of the undue influence and fraud of Father Leo, and also that Edgar Turcotte did not know that he was granted even greater benefits under the earlier 1948 will and its codicil. Edgar Turcotte died and his two sons then received by devise a part of what Edgar had received under Mrs. East’s 1960 will. Patrick and Robert Tur-cotte urge that in 1973 when this same issue was before the court of civil appeals that the court ruled that Edgar Turcotte was not estopped unless there were pleadings and proof that he received the benefits of the 1960 will with knowledge of the facts. 499 S.W.2d 705, 712-15 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n.r.e.). The court of civil appeals at that time ruled:
There is neither pleading nor evidence to support the findings that Edgar Turcotte, at the time he accepted benefits under the contested will, had full knowledge of the lack of testamentary capacity of Mrs. East when she executed the will.
Patrick and Robert advance a second basis to establish their standing to attack the 1960 will. They own an interest entirely independent of their claims as children of Edgar Turcotte, one of the beneficiaries of the 1960 will. Robert C. Putegnat and his sister Marie Walker were second cousins of Mrs. East and as such were her heirs at law. They were also named as beneficiaries by a codicil to Mrs. East’s 1948 will. They were not named as beneficiaries under the 1960 will. Putegnat and Walker contested the 1960 will, and there has at no time been any pleading or contention that those parties lacked standing to sue to strike down the 1960 will.
Putegnat and Walker sold a part of their valid and nonestopped claim to Patrick and Robert Turcotte by transactions which the majority opinion upholds as valid. In other words, Patrick and Robert Turcotte lawfully bought the interests of Putegnat and Walker and the majority upholds the lawfulness of the purchase. We thus have the situation in which Patrick and Robert Tur-cotte bought an unestopped interest; however, this court denied them the right to assert that unestopped interest.
Patrick and Robert Turcottes’ standing, provided they factually proved their acquisition of the interests, was decided in the earlier appeal of this case. Patrick and Robert Turcotte rely upon these express holdings by the court of civil appeals on the former appeal about standing: Patrick Tur-cotte had the legal right to purchase from other heirs an interest in Mrs. East’s estate; Patrick and Robert Turcotte had the right to plead their interest based on (a) what they acquired by devise under the will of their father Edgar Turcotte, and (b) that which they purchased from Marie Walker; if either title so pleaded was proved, they were entitled to prosecute the will contest; an estoppel against Robert Turcotte by reason of his devise under his father’s will does not cut off his interest acquired by purchase from Marie Walker; neither Patrick nor Robert Turcotte were personally es-topped from contesting Mrs. East’s will, because they were not named as beneficiaries in her will, “They having accepted no benefits under Mrs. East’s will . . . .” Turcotte v. Trevino, 499 S.W.2d 705, 721-22.
The majority now rejects all of those earlier holdings, but writes at length to excuse and justify its disregard of the earlier 1973 opinion. The point before the court of civil appeals in 1973 and this court on application for writ of error in that former case, was whether the Turcottes had standing as the assignee of a part of an unes-topped claim of Marie Walker. It is correct that the court of civil appeals recognized differences in the records of the two appeals of these same parties. But the court of civil appeals, writing on this second appeal, recognized the identity of the parties and problem, and it applied the same rule in the second appeal that it did in the first one. Whatever may be the other differences in this and the earlier records on appeal, the records are the same concerning *692the right of the Turcottes to assert rights under their valid assignments.
Lest there be any question of the sameness of the issue and parties in the earlier1 and the present2 appeal, we should examine the verbatim holdings in the two opinions written by the same judge of the same court about the same point. Five years ago the court of civil appeals relied upon Dickson v. Dickson, 5 S.W.2d 744 (Tex.Com.App.*6931928, judgmt adopted); Abrams v. Ross’ Estate, 250 S.W. 1019 (Tex.Com.App.1923, judgmt adopted), and 23 Am.Jur.2d, Descent and Distribution, § 36 (1965). The court of civil appeals in this case believed that it was applying the law of the case, because it cited the 1973 case of Turcotte v. Trevino.
Patrick and Robert Turcotte have now done precisely what they were told they needed to do by the 1973 remand of this case. They returned to the trial court and made the factual proof of their standing. They now learn that the retrial upon the remand was an empty and useless effort. As stated by the majority opinion, this court has the power to ignore the law of the case, but it is unfortunate that we have chosen to do so after so long a delay which we ordered, and after the waste of so much time and money upon a retrial that really should not have been conducted. The majority has found no better reasons than those urged in the former appeal for its change of mind, and it cites no Texas authority for its rule that, in this instance, it would be “inequitable and unjust” to allow Patrick and Robert Turcotte to conduct a trial which would determine which will in truth was Mrs. East’s last will. That issue will now never be determined. In my opinion this is a textbook example for the application of the law of the case. Kendall & Harcourt v. Mather, 48 Tex. 585, 597-98 (1878); Wood v. Wheeler, 9 Tex. 127 (1852).
I agree with the opinion of the court of civil appeals, and I would refuse the writ, no reversible error, and permit Patrick and Robert Turcotte, who have a valid assignment from unestopped heirs and devisees, to make their proof about the testamentary capacity of Mrs. East and on the issues of fraud, undue influence and duress. I do not believe that the property rights which Patrick and Robert purchased should be deemed expendable.
CHADICK, J., joins in this dissent.
. Turcotte v. Trevino, 499 S.W.2d 705, 721-22 (Tex.Civ.App.—Corpus Christi 1973, writ ref d n. r. e.):
It is without dispute in the record that Marie Walker is an heir at law of Mrs. East as well as one of the beneficiaries entitled to share in a $20,000.00 legacy bequeathed by the 1948 will. As such, she holds the necessary justiciable interest in the East estate to maintain the will contest, and did, in fact, do so.
It is settled law in this State that the heirs, devisees and legatees of a decedent may validly assign all or any part of their rights and interests in a decedent’s estate to another person. Morris v. Halbert, 36 Tex. 19 (1891) [sic]; Geraghty v. Randals, 224 S.W.2d 327 (Tex.Civ.App.—Waco 1949, n. w. h.); 20 Tex. Jur.2d, Descent and Distribution, § 33, p. 116. An assignee of an heir at law or of a devisee or legatee of a decedent has a right to prosecute a will contest to set aside a will which prejudicially affects the rights or properties transferred by the assignment. Dickson v. Dickson, 5 S.W.2d 744 (Tex.Com.App.1938) [sic].
The rule is set forth in 23 Am.Jur.2d, Descent and Distribution, § 36, p. 782, as follows;
. Estoppels, where operating against the ancestor, do not operate against his heir as to property not inherited from the ancestor but acquired from an independent source. Hence, [sic] an heir is not bound by such an estoppel with respect to property taken by purchase, or devise, or inheritance [sic] from one other than the particular ancestor”.
In Abrams v. Ross’ Estate, 250 S.W. 1019 (Tex.Com.App.1923), the will contestant had acquired two rights, through different sources, to maintain a will contest. He sued on the basis of both rights. The court held that he was entitled to maintain the will contest if either right be valid, saying:
“. . . They were not required to rely upon one or the other. If either title pleaded showed in them any interest in the estate of Sarah Ross, in the absence of the probate of her will, they were entitled to contest such probate.
. Turcotte v. Trevino, 544 S.W.2d 463, 474 (Tex.Civ.App.—Corpus Christi 1976):
It is settled law in this State that the heirs, devisees and legatees of a decedent may validly assign all or any part of their rights and interests in a decedent’s estate to another person. Morris v. Halbert, 36 Tex. 19 (1871); Geraghty v. Randals, 224 S.W.2d 327 (Tex.Civ.App.—Waco 1949, no writ); 20 Tex.Jur.2d, Descent and Distribution, § 33. An assignee of an heir at law, devisee or legatee of a decedent has a legal right to maintain a will contest to set aside a will which prejudicially affects the properties assigned or conveyed to him by the assignment under which he claims. Dickson v. Dickson, 5 S.W.2d 744 (Tex.Comm’n App.1928).
* * * * * * *
The rule is set forth in 23 Am.Jur.2d, Descent and Distribution, § 36, p. 782, as follows:
“. . . Estoppels, where operating against the ancestor, do not operate against his heir as to property not inherited from the ancestor, [sic] but acquired from an independent source. Hence an heir is not bound by such an estoppel with respect to property taken by purchase, or devise, or inheritance, from one other than the particular ancestor”.
A will contestant who has acquired rights through different sources to property owned by the decedent and disposed of by will may file a suit to contest a will. Such contestant is entitled to maintain the will contest if either right be valid, and he is not required to rely upon one or the other. Abrams v. Ross' Estate, 250 S.W. 1019 (Tex.Comm’n App.1923); Turcotte v. Trevino, supra.