Texas - Probate of Lost Wills #1 (Advanced)

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© A. Hawkins 2002

The Nature of this Course

This course is one of a cluster of courses that cover reported Texas cases from the last 50 years on missing and lost Wills as well as wills that have been altered after execution. This course is the an advanced course on missing and lost Wills. The introductory course, Texas - Probate of Lost and Altered Wills - Overview should be taken first. This text is written on the assumption that you have completed that course. You may take the advanced courses in the cluster in any order. Some lost and missing Will cases are in the overview course. The rest are in the advanced courses. The material is divided into separate courses to make each course a reasonable length. This allows you to take one course at a time as your schedule permits and gradually become a KnowItAll.

The cases are lightly edited[1] to retain the full flavor and context. This is a case study. Cases are kept intact rather being chopped up and quoted or cited issue by issue. Cases typically involve several issues and are grouped under one of those issues. Be aware that other issues are often present. As a result, some cases that involve a particular issue will be grouped under another issue.

Prior to each court opinion, the teacher provides an italicized commentary.

Course Procedure

Your MCLE credit for this course is limited to the time you actually spend, up to the three hour maximum approved time. You may spend more time. If you spend less time and skim or omit some material, you will still gain substantial knowledge. You will certify the time you actually spend.

Registration, course evaluation, certification of actual time spent and instructions for payment are on the Discussion Group page. You will go there when you complete this text. If you like, you may preview it now. If you wish to print this course, you may do so. If you print it, check to be sure that it is printing normally. It is created in Microsoft Word and displayed as a web page. You may copy it, or open it in a word processor if you like. The footnotes are at the end because of internet technicalities. If you read this in your internet browser, you can probably click on footnote number to go to the footnote text, and click on the footnote number again to return to the main text. If you print it, you may find it convenient to staple the footnotes separately so you can refer to them easily while reading the text.

Texas - Probate of Lost Wills #1 (Advanced)

Texas Missing or Lost Wills

Table of Contents of all Cases Covered in the Cluster of Courses

[ * * Cases that are in the overview course. * * ]

The Burden of Proof

In the Matter of the Estate of Grace Glover, Deceased 744 S.W.2d 939 (Tex 1988) (per curiam)

Estate of Glover 744 S.W.2d 197 (Tex.App. - Amarillo 1987) (same case at Court of Appeals)

Hunter v. Palmer 988 S.W.2d 471 (TexApp-Houston [1st Dist.] 1999)

Pipkin v. Dezendorf 618 S.W.2d 924 (Tex.Civ.App.-Houston [1st dist.] 1981

Attorney Liability & Attorney Lost the Will

Who may Possess the Ward’s Will - the Guardian or lawyer?

Baumann v. Willis 721 S.W.2d 535 (Tex. App.- Corpus Christi 1986)

Revocation Without Probate and The Attorney Lost the Duplicate Will.

Lisby v. Richardson 623 S.W.2d 448 (Tex.App.-Texarkana 1981)

Did the attorney lose the will?

Buchanan v. Thrasher 387 S.W.2d 950 (Tex.Civ.App.-Austin 1965)

Hoppe v. Hoppe 703 S.W.2d 224 (Tex.App. -Houston [14th Dist.] 1985)

Is possession by the testator’s lawyer possession by the testator?

Thompson v. Dobbs 234 S.W.2d 939 (Tex.Civ.App.-Ft. Worth 1950)

Actual and Exemplary Damages Against A Lawyer

Harkins v. Crews 907 S.W.2d 51 (Tex.App.-San Antonio 1995)

Texas 2-Step- Burn the will, then probate it

Estate of Morris 577 S.W.2d 748 (Tex.Civ.App. 1979)

[ * * Cases in this course. * * ]

The 4 year period of limitations

Howard Hughes Medical Institute v. Lummis 596 S.W.2d 171 Tex.Civ.App.-Houston [14th Dist. 1980)

Fuller v. Sechelski 573 S.W.2d 587 (Tex.Civ.App.-Houston[1st Dist.] 1978)

Strasburger v. Compton 324 S.W.2d 951 Tex.Civ.App. -Ft. Worth 1959)

Wells v. Royall Nat.Bank of Palestine (Tex.Civ.App.-Galveston 1952)

Coulson v. Sheppard 700 S.W.2d 336 (Tex.App.-Corpus Christi 1985)

Multiple Originals

Sparkman v. Massey 297 S.W.2d 308 (Tex.Civ.App.-Dallas 1957)

Jurisdiction

Estate of Merrick 630 S.W.2d 500 (Tex.App.-Amarillo 1982)

Charity

Hackfeld v. Ryburn 606 S.W.2d 340 (Tex.Civ.App.-Tyler 1980)

Interest

Hamilton v. Gregory 482 S.W.2d 287 (Tex.Civ.App.-Houston [1st Dist.] 1972)

Joint Wills

Pearce v. Meek 780 S.W.2d 289 (Tex.App.-Tyler 1989)

Tinney v. Carpenter 369 S.W.2d 440 (Tex.Civ.App.-Austin 1963)

Holographic Missing Wills

McClusky v. Owens 255 S.W.2d 939 (Tex.Civ.App-Dallas 1953)

Halmicek v. Halamicek 542 S.W.2d 246 Tex.Civ.App.-Corpus Christi 1976)

[ * * Cases that in the course on lost and then found Wills, Dead Man’s Rule and other issues. * * ]

Lost and Found Wills

Estate of McGrew 906 S.W.2d 53 (Tex.App.-Tyler 1995)

Myers v. Spharler 370 S.W.2d 239 (Tex.Civ.App. -Texarkana 1963)

Will Lost (and found) By Trust Department & Liability For Losing Will

Gifford v. Bank of the Southwest 712 S.W.2d 182 (Tex. App. Houston [14th Dist.] 1986)

The Accountant Caper

Estate of Simms 442 S.W.2d 426 (Tex.Civ.App.-Texarkana 1969)

It helps to have the court like you

Estate of Caples 683 S.W.2d 741 (Tex.App.-Corpus Christi 1984)

A nonsuit may not be valid

O’brien v. Stanzel 603 S.W.2d 826 (Tex 1980)

Howard Hughes’ Multifaceted Contribution to the Law of Missing Wills

Howard Hughes Medical Institute v. Neff 640 S.W.2d 942 (Tex.App. - Houston [14th Dist.] 1982)

Dead Man’s Statute

Adams v. Barry 560 S.W.2d 935 (Tex. 1978)

Stewart v. Long 394 S.W.2d 25 (Tex.Civ.App. - Dallas 1965)

Dead Man’s Statute and Joint Wills

Harris v. Robbins 302 S.W.2d 225 (Tex.Civ.App. 1957)

Henderson v. Barrett 376 S.W.2d 432 (Tex.Civ.App.-Waco 1964)

[ * * Cases in the advanced course on proof of a missing Will. * * ]

Was there a diligent search?

Lewis v. White 747 S.W.2d 45 (TexApp - Beaumont 1988)

The letters about the missing Will

Estate of Sorenson 370 S.W.2d 225 (Tex.Civ.App.-El Paso 1963)

Inferences on inferences

Berry v. Griffin 531 S.W.2d 394 (Tex.Civ.App.-Houston [14th Dist.] 1975)

The amount of evidence required

Dodd v. The Peoples National Bank 377 S.W.2d 760 (Tex.Civ.App. Texarkana 1964)

The Citizens First National Bank of Tyler 433 S.W.2d 741 (Tex.Civ.App. - Tyler 1968)

Roberts v. Roberts 405 S.W.2d 211 (Tex.Civ.App. - Waco 1966)

Mayo v. Mattiza 480 S.W.2d 9 (Tex.Civ.App.- Corpus Christi 1972)

Miller v. Miller 285 S.W.2d 373 (Tex.Civ.App.-Eastland 1956)

Miller v. Miller 304 S.W.2d 277 (Tex.Civ.App.-Eastland 1957) (the same case returns)

Cashion v. Cashion 242 S.W.2d 468 (Tex.Civ.App. 1951)

Nolen v. Nelson 262 S.W.2d 124 (Tex.Civ.App.-Waco 1953)

Cable v. Cable 480 S.W.2d 820 (Tex.Civ.App.-Ft. Worth 1972)

Proof of a Missing Will by Proving a Codicil

Aven v. Green 320 S.W.2d 660 (Tex. 1959)

Aven v. Green 316 S.W.2d 78 (Tex.Civ.App.-Waco-1958) (same case)

* * * * *

Alphabetical Case List for the Entire Cluster of Texas Lost Will Courses

Adams v. Barry 560 S.W.2d 935 (Tex. 1978) no writ

Aven v. Green 320 S.W.2d 660 (Tex. 1959)

Aven v. Green 316 S.W.2d 78 (Tex.Civ.App.-Waco-1958) reversed

Berry v. Griffin 531 S.W.2d 394 (Tex.Civ.App.-Houston [14th Dist.] 1975) nre

Baumann v. Willis 721 S.W.2d 535 (Tex. App.- Corpus Christi 1986)

Buchanan v. Thrasher 387 S.W.2d 950 (Tex.Civ.App.-Austin 1965) nre

Cable v. Cable 480 S.W.2d 820 (Tex.Civ.App.-Ft. Worth 1972) no writ

Estate of Caples 683 S.W.2d 741 (Tex.App.-Corpus Christi 1984) nre

Cashion v. Cashion 242 S.W.2d 468 (Tex.Civ.App. 1951) refused

The Citizens First National Bank of Tyler 433 S.W.2d 741 (Tex.Civ.App. - Tyler 1968)

Coulson v. Sheppard 700 S.W.2d 336 (Tex.App.-Corpus Christi 1985) no writ

Dodd v. The Peoples National Bank 377 S.W.2d 760 (Tex.Civ.App. Texarkana 1964) (disapproved)

Fuller v. Sechelski 573 S.W.2d 587 (Tex.Civ.App.-Houston[1st Dist.] 1978) nre

Gifford v. Bank of the Southwest 712 S.W.2d 182 (Tex.App.-Houston [14th Dist.] 1986) no writ

Estate of Glover 744 S.W.2d 197 (TexApp- Amarillo 1987) affirmed

In the Matter of the Estate of Grace Glover 744 S.W.2d 939 (Tex 1988)

Hackfeld v. Ryburn 606 S.W.2d 340 (Tex.Civ.App.-Tyler 1980) dismissed

Halmicek v. Halamicek 542 S.W.2d 246 Tex.Civ.App.-Corpus Christi 1976) nre

Hamilton v. Gregory 482 S.W.2d 287 (Tex.Civ.App.-Houston [1st Dist.] 1972) nre

Harris v. Robbins 302 S.W.2d 225 (Tex.Civ.App. 1957) no writ (disapproved)

Harkins v. Crews 907 S.W.2d 51 (Tex.App.-San Antonio 1995) denied

Henderson v. Barrett 376 S.W.2d 432 (Tex.Civ.App.-Waco 1964) nre

Hoppe v. Hoppe 703 S.W.2d 224 (Tex.App. -Houston [14th Dist.] 1985) nre

Howard Hughes Medical Institute v. Lummis 596 S.W.2d 171 Tex.Civ.App.-Houston [14th Dist. 1980) nre

Howard Hughes Medical Institute v. Neff 640 S.W.2d 942 (Tex.App.-Houston [14th Dist.] 1982) nre

Hunter v. Palmer 988 S.W.2d 471 (TexApp-Houston [1st Dist.] 1999) no writ

Lewis v. White 747 S.W.2d 45 (TexApp - Beaumont 1988) dismissed

Lisby v. Richardson 623 S.W.2d 448 (Tex.App.-Texarkana 1981)

McClusky v. Owens 255 S.W.2d 939 (Tex.Civ.App-Dallas 1953) refused

Estate of McGrew 906 S.W.2d 53 (Tex.App.-Tyler 1995) denied

Estate of Merrick 630 S.W.2d 500 (Tex.App.-Amarillo 1982) nre

Miller v. Miller 285 S.W.2d 373 (Tex.Civ.App.-Eastland 1956) no writ

Miller v. Miller 304 S.W.2d 277 (Tex.Civ.App.-Eastland 1957) no writ

Mingo v. Mingo 507 S.W.2d 310 (Tex.Civ.App.-San Antonio 1974) nre

Estate of Morris 577 S.W.2d 748 (Tex.Civ.App. 1979) nre

Mayo v. Mattiza 480 S.W.2d 9 (Tex.Civ.App.- Corpus Christi 1972)

Myers v. Spharler 370 S.W.2d 239 (Tex.Civ.App. -Texarkana 1963) nre

Nolen v. Nelson 262 S.W.2d 124 (Tex.Civ.App.-Waco 1953) nre

O’brien v. Stanzel 603 S.W.2d 826 (Tex 1980)

Pearce v. Meek 780 S.W.2d 289 (Tex.App.-Tyler 1989) no writ

Pipkin v. Dezendorf 618 S.W.2d 924 (Tex.Civ.App.-Houston [1st dist.] 1981) nre

Roberts v. Roberts 405 S.W.2d 211 (Tex.Civ.App. - Waco 1966)

Estate of Simms 442 S.W.2d 426 (Tex.Civ.App.-Texarkana 1969) nre

Estate of Sorenson 370 S.W.2d 225 (Tex.Civ.App.-El Paso 1963) nre

Sparkman v. Massey 297 S.W.2d 308 (Tex.Civ.App.-Dallas 1957) nre

Strasburger v. Compton 324 S.W.2d 951 Tex.Civ.App. -Ft. Worth 1959) nre

Stewart v. Long 394 S.W.2d 25 (Tex.Civ.App. - Dallas 1965)

Thompson v. Dobbs 234 S.W.2d 939 (Tex.Civ.App.-Ft. Worth 1950) nre

Tinney v. Carpenter 369 S.W.2d 440 (Tex.Civ.App.-Austin 1963) nre

In re Estate of Watson 720 S.W.2d 806 (Tex. 1986)

Wells v. Royall Nat.Bank of Palestine 249 S.W.2d 695 (Tex.Civ.App.-Galveston 1952) nre

The 4 year period of limitations.

A proponent has at least four years to apply for probate of a missing will. The time may not be shortened, but may be lengthened.

* * * * *

We start with the first of two cases which arose after the death of the famous wealthy recluse, Howard Hughes, who made the search for missing wills entertaining. Lummis involves the four year statute of limitations, and holds that a declaratory judgment may not shorten that time. It also involves a claim of disqualification of an attorney. In a separate course in this cluster of courses we review Howard Hughes Medical Institute v. Neff, the subsequent case which explores a wide range of additional issues.

Howard Hughes Medical Institute v. Lummis, 596 S.W.2d 171 Tex.Civ.App.-Houston [14th Dist. 1980)

“This is an appeal by the Howard Hughes Medical Institute (HHMI or Appellant) from the judgment of the probate court of Harris County granting summary judgment in favor of Annette Gano Lummis (Lummis or Appellee) on her declaratory judgment claim that the alleged will claimed by HHMI is not the valid last will and testament of Howard Hughes.

“Howard Robard Hughes, Jr., died on April 5, 1976. On April 14, 1976 appellee Annette Lummis, Hughes' aunt, and her son, William R. Lummis, applied for and were granted letters of temporary administration of Hughes' estate, in Probate Court No. 2 of Harris County. The letters of temporary administration were sought primarily to facilitate the finding of Mr. Hughes' will.

“On February 24, 1977, HHMI filed an entry of appearance in the probate court proceedings claiming that Hughes did execute a last will and testament leaving his entire estate to HHMI. Appellant also gave notice through this entry that it had filed a petition in the district court of Nevada, Clark County, claiming that Hughes had executed such a will and sought an opportunity to discover it or prove its contents as a last will under the laws of Nevada. 1[2]

“On April 6, 1978, Lummis filed her original cross-action, in which she sought a declaratory judgment "that the alleged will claimed by HHMI is not the valid last will and testament of Howard R. Hughes, Jr." Lummis subsequently filed a motion for summary judgment on her declaratory judgment action. The motion was granted and judgment was entered, holding in part that HHMI’s claim of a will in which it is a beneficiary is invalid. Appellant appeals from this judgment.

“Appellant contends in its first point of error that a declaratory judgment action cannot be used to determine appellant’s will claim. Under the Texas Probate Code, a definite plan has been provided for the proving and finding of lost wills.[3] Section 85 gives the requirements regarding proof of wills not produced in court. Section 85 states that a lost will shall be proved in the same manner as provided in section 84. Under section 84, due execution of the will must be proved, whether it be an attested written will or a holographic will. An attested written will may be proved by the testimony of at least one attesting witness, or if unavailable, by at least one witness who is familiar with the handwriting of an attesting witness or the testator. A holographic will must be proved by two witnesses who can identify the testator’s handwriting.

“In addition, section 85 requires that the cause of non-production be proved. Furthermore, the contents of such a will must be proved by a witness who has read the will or heard it read. Section 73 provides for a four year period from the time of decedent’s death within which to offer a will for probate. Appellant has not offered any alleged lost will for probate in the court below and does not contend that any such will can presently be established under the requirements of Texas law. Appellant will be foreclosed from offering any such will for probate four years after April 5, 1976.

“To allow the declaratory judgment mechanism to determine the validity of HHMI’s claim that a valid will exists would impermissibly subvert the statutory scheme and time limitations established by the probate code. If this determination were allowed, the period in which a will meeting the statutory requirement for validity may be filed for probate would be shortened. We hold that the declaratory judgment was an impermissible advisory opinion before joining of issue in a will contest, and before the expiration of the time allowed by law for the filing for probate of a valid last will and testament meeting all the requirements of the probate code.

“Since we must reverse, we do not reach any of the other points of error except the disqualification issue which appellant raises. Appellant claims that Andrews, Kurth, Campbell and Jones, the law firm that represents appellee, should be disqualified in this action because its continued representation would result in violations of the canons of professional conduct. 2[4]

“The rule under the "substantially related" test is that an attorney will be disqualified if a substantial relationship can be shown between the subject matter of a former representation by the attorney and a subsequent adverse representation.[5]

“Andrews, Kurth served as counsel for HHMI for more than twenty years and helped in obtaining HHMI’s tax exempt status. Andrews, Kurth also had knowledge of HHMI’s policies and operations. However, the matters now at issue in this appeal concern appellant’s claim of a valid will allegedly leaving Hughes' estate to HHMI. Thus, Andrews, Kurth’s previous work for HHMI does not have a substantial relationship with the matters now pending on appeal. Moreover, some courts have used an equitable approach and have considered other factors, such as the time and expense expended by counsel on behalf of its present client and the prejudice that might result to counsel’s present client if counsel were forced to withdraw.[6] Lummis has retained Andrews, Kurth as her counsel in all of the probate proceedings relating to Hughes' estate in this state and others. She would suffer extreme hardship if Andrews, Kurth were to be forced to withdraw from this case.

“Affirmed in part, reversed and remanded in part.”

“We reverse that part of the judgment granting summary judgment on the declaratory judgment and remand for further proceedings but affirm on the disqualification. . . .”

* * * * *

Fuller involves the burden of proof and requirement of fact finding, as well as the statute of limitations for probate of a Will.

Fuller v. Sechelski, 573 S.W.2d 587 (Tex.Civ.App.-Houston [1st Dist.] 1978)

“This was a proceeding to probate a lost will as a muniment of title. The trial was to the court without a jury and resulted in a judgment denying probate of the will of Rufus L. Sechelski, deceased. The judgment recites certain findings of fact and conclusions of law. Roy L. Fuller, a beneficiary under the will, appeals. The judgment will be affirmed.

“Rufus L. Sechelski executed a will on September 18, 1963. In 1969 he suffered a stroke and upon being released from the hospital moved to a nursing home in Navasota, Texas. Helen Mercado, a niece, handled the business affairs of Mr. Sechelski after she was appointed guardian of his estate in 1971. She remained his guardian until his death on May 19, 1973. Mr. Sechelski customarily kept his will in a suitcase in his room. Mrs. Mercado testified that while he was in the nursing home he gave her the original will to take to Mr. Bond, an attorney, because he wanted to change it. She took the will to Mr. Bond. Later she went to Mr. Bond’s office and told him not to make a new will leaving property to her because she did not want a problem. She stated that Mr. Bond handed her an envelope which she supposed contained the original will although she did not open the envelope to determine that fact. She gave the envelope back to Mr. Sechelski and he twisted it and kept twisting it and told her to get Mr. Bond there to change the will. This was the last occasion on which she saw the will.

“In June, 1973, Mr. Fuller secured the services of Mr. James H. Whitcomb, an attorney. Mr. Whitcomb got in touch with Mr. Bond and obtained a zerox copy of a copy of the will which Mr. Bond had retained in his office. He also learned from Mr. Bond that Mrs. Mercado was the guardian of Mr. Sechelski. He then wrote Mrs. Mercado telling her that Mr. Fuller had asked him to look into the matter of the will of Mr. Sechelski and that he had obtained a copy of the will. He stated that he understood that she, Mrs. Mercado, had the original will and inquired what her intentions were as to the disposition of the will and when she planned to file it for probate. Mr. Whitcomb testified that he did not receive a written reply to his letter to Mrs. Mercado and that he did not remember whether she called him on the phone. He gave the zerox copy of the will to Mr. Fuller’s daughter, and this is the instrument which was later offered for probate.

“Mr. Fuller testified to the effect that soon after he learned that Mrs. Mercado did not answer Mr. Whitcomb’s letter he called her by telephone and asked her about the will. She told him that she had it in safekeeping. Mrs. Mercado testified that one week after her uncle, Mr. Sechelski, passed away Mr. Fuller called and asked her if she was going to probate the will and she told him that she did not have it. She further stated that was the only time she had any contact with Mr. Fuller.

“No other action was taken by Mr. Fuller with regard to the will until February or March 1977. At that time his wife called the courthouse in Grimes County and found out that something had been filed. When her husband returned from an out of town job several weeks later they discussed the matter and decided that the will must have been filed for probate. A few more weeks passed and they went to see an attorney. The will was then filed for probate as a muniment of title on June 10, 1977.

“A written will which cannot be produced in court must be proved in the same manner as provided by law for an attested written will produced in court. In addition the proponent of a written will which cannot be produced in court must prove the cause of its non-production and that it cannot by any reasonable diligence be produced.[7]

“Section 73, Texas Probate Code, provides that no will shall be admitted to probate after the lapse of four years from the death of the testator unless there be proof that the party applying for probate was not in default in failing to present the same for probate within the four year period.

“The trial judge recited in the judgment entered that the proponent, Roy L. Fuller, failed to present the purported will of Rufus L. Sechelski for probate within four years from the date of death as required by Sections 73 and 74 of the Texas Probate Code, but that proponent did make a diligent effort to locate the original will within the statutory period. The parties to this appeal appear to have treated the court’s finding that proponent made a diligent effort to find the original will as a finding that proponent was not in default in failing to present the will for probate within four years. It is more logical to suppose that the finding in question refers to the requirements of Section 85 of the Probate Code that the cause of the non-production of the will must be proved and that such cause must be sufficient to satisfy the court that the will cannot by any reasonable diligence be produced. The trial judge made a finding on the last point. He made no specific fact finding as to the cause of the non-production of the will. The burden of establishing this fact rested on Mr. Fuller.[8]

“There is no testimony concerning the character of a search, if any, that was made for Mr. Sechelski’s will or as to the disposition made of his personal effects after his death. While Mrs. Mercado testified that the last time she saw the will he was twisting it and asking her to get his lawyer, this event appeared to have happened some years before his death. Mr. Sechelski was survived by two brothers and there is no evidence that inquiry was made of either of them. Since the trial court refused to admit the will to probate no presumptions may be indulged to aid the case of the proponent. The trial judge made factual findings that the last time the will was seen it was in the custody and control of decedent and that diligent effort by proponent failed to produce it. He then concluded as a matter of law that the decedent destroyed the will with intent to revoke it.[9]

“The will was filed for probate more than four years after the death of the testator. The trial court made no finding that Roy L. Fuller was not in default in failing to present the same for probate within four years of the date of the testator’s death. The evidence does not establish this fact as a matter of law. Whether a proponent of a will is in default, as that term is used in Section 73 of the Probate Code, is usually a fact question for the determination of the court or jury.[10]

“The evidence does no more than raise a fact issue as to whether Mr. Fuller was in default in failing to present the will for probate. The failure to secure a finding on this issue requires that the judgment of the trial court be affirmed.[11]

“Since we have reached the conclusion that the judgment must be affirmed by reason of the matters raised in appellee’s cross-point and discussed heretofore, it is unnecessary to discuss the appellant’s points of error. No point requiring reversal is presented.

Affirmed.

* * * * *

Strasburger involves limitations, an interesting “revision” of the date of a court judgment, and the advantage to all Will proponents of the marriage of one proponent. It seems that the statute of limitations did not run because she was married. Strasburger also involves the issue of whether the Will was actually executed by the decedent. The Will which had been lost was found. There were witnesses. They testified. They testified that the decedent executed the Will and that they saw her do it with their very own eyes. So, how can there be an issue? The experts, of course! The two “handwriting experts” testified that the signature was not that of the decedent. The jury believed the eyewitnesses, not the “experts.” Strasburger also contains an erroneous and utterly absurd statement that a person who receives a bequest in one Will, and a smaller bequest in a subsequent purported Will, has no “interest” which allows a challenge to the subsequent will. It is elementary that a person may challenge a purported subsequent will if they get less if the Will is probated than if it is not probated. Sometimes courts get confused. Sometimes they say strange things. This is one of those times.

Strasburger v. Compton, 324 S.W.2d 951 Tex.Civ.App. -Ft. Worth 1959)

“Appellees Marjorie Mullins Compton and husband, C. Ray Compton, and Jake Rushing sought to have probated as the last will of Mrs. D. A. Cole, Deceased, an instrument dated October 29, 1950, and to set aside the probate of a will of Mrs. Cole dated June 15, 1949. The action was brought against Henry W. Strasburger, individually and as independent executor of the estate of Mrs. Cole, and Rebbie Vincent Gathings and husband, Paul Gathings. All relief sought by appellees was denied by the County Court. On appeal to the District Court, there was a verdict for appellees and judgment was rendered setting aside the probate of the first will and admitting the second will to probate. Strasburger, individually and as executor, has appealed.

“Appellant’s mother was a first cousin of Mrs. Cole. Mrs. Compton is a niece as well as a second cousin of Mrs. Cole, her father being Mrs. Cole’s brother. Mrs. Compton and another niece are Mrs. Cole’s sole heirs at law.

“Appellant was the principal beneficiary in the first will. There was a conditional bequest to Mrs. Gathings, but she assigned any interest she may have had in the estate to appellant. After directions as to burial, payment of debts, expenses, and taxes, the second will bequeathed to Strasburger, Mrs. Compton, and Raymond C. Gee $5,000[12] each; to Rushing 10 shares of stock in Ellison son Furniture & Carpet Company; $1,500 to Mamie Henderson; and the balance of the estate to Mrs. Dove Alice Mullins, the mother of Mrs. Compton and widow of Mrs. Cole’s deceased brother. Mrs. Mullins died intestate before the trial, leaving Mrs. Compton as her only heir at law.

“Appellant contends that it was error to overrule his motions for an instructed verdict and for judgment non obstante veredicto. The grounds for the motions were based on the contention that the contest of the probate of the first will was barred by the provisions of Article 5534, and that the application to probate the second will was barred by the provisions of Article 3326, it having been offered more than four years after the death of the testatrix.

“We do not think that error is reflected by these points. Appellees' suit was filed June 8, 1956. The jury found that the first will was probated June 22, 1952. Although there was evidence raising the issue that it was probated on June 2, 1952, we think the evidence was sufficient to support the finding that it was probated on June 22, and that therefore the four year limitation provided for in Article 5534 does not bar the suit. From the time the will was probated until twelve days after this case was submitted to a jury in the District Court, the judgment admitting it to probate, as recorded in the minutes of the County Court, showed that it was probated on June 22, 1952. On June 18, 1958, after the District Court verdict but before its judgment was rendered, the County Judge signed an order instructing the County Clerk to correct the minutes to show that June 2 instead of June 22 was the date of the judgment. There was no notice to the adverse parties of the action of the County Judge, as seems to be required by Rules 316 and 317, Texas Rules of Civil Procedure.

'* * * The acts of a court of record are known by its records alone and cannot be established by parol testimony. The court speaks only through its records, and this rule applies in case of a judge. Furthermore, the records of a court cannot be impugned upon matters within its jurisdiction, when offered in evidence, by counter evidence * * *.'[13]

“Moreover, Mrs. Compton was at all times material to this suit a married woman. By the provisions of Article 5535 it appears that the limitation mentioned in Article 5534 did not run against her. And recovery by her inures to the benefit of the other appellees.[14]

“Another point is that the finding that Mrs. Cole executed the second will is so against the overwhelming weight of the evidence that it ought to be set aside. The evidence that she executed the will is clear and unimpeached. Her banker testified that in his opinion Mrs. Cole signed the instrument. Two other handwriting experts testified that they did not think she did. The persons whose names were on the will as attesting witnesses testified that Mrs. Cole signed the instrument, that she declared to them that the paper was her will, that she was of sound mind, and that the will had not been revoked so far as they knew and believed. There was evidence that Mrs. Cole at times evidenced dislike for some of those who are devisees in the last will. But the jury and the trial court heard all the evidence and observed the witnesses; and we do not feel constrained to hold that the opinion of two handwriting experts and the other circumstantial evidence overcome the plain and unequivocal testimony of witnesses who were in a position to know, to such an extent as to show that the jury verdict was manifestly wrong. Unless such appears, the findings bind this court.[15]

“Another point is that the court erred in not submitting an issue as to whether appellees were in default in not offering the second will for probate within four years of the testatrix' death. He excepted to the court’s failure to submit such issue. The uncontradicted evidence is that the will was found by Mrs. Compton among the effects of her deceased mother, about May 20, 1956. Mrs. Cole died May 15, 1952. There was evidence that Mrs. Compton and her husband had heard that a subsequent will had been executed, but we think it was shown that they did not know enough about its execution and contents to probate it as a lost will. One of the attesting witnesses did not read the will, and the other attesting witness said he read the will but could not remember what sums or what property had been left to each person named therein, and did not remember the names of all the beneficiaries. There was no evidence that Rushing ever heard of the will until Mrs. Compton found it. To probate a lost will, it is necessary to establish with some degree of certainty its material contents in order that title to property may pass.[16]