Texas - Advanced Lost Wills #2

Lost and Then Found Wills;

Dead Man’s Rule;

and Other Issues

YouKnowItAll.com

CLE Provider

© 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.

Table of Contents of the Entire 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 the Texas-Probate of Lost Wills (Advanced) 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)

Stasburger 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 this course * * ]

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 course - Advanced Lost Wills #3 Proof Required to Probate a Lost 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

Stasburger 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 Course Text

Texas - Advanced Lost Wills #2

Lost and Then Found Wills;

Dead Man’s Rule;

and Other Issues

Lost and Found

* * * * *

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

McGrew is one of the “truth is stranger than fiction” cases in which the testator’s wife’s sister-in-law borrows the testator’s Will, uses it as a form to write a Will, and writes her changes on the testator’s executed Will. There is also a tissue paper Will. There are proceedings in multiple counties. There was a 16 year delay before probate. Not bad for one case.

“This is an appeal from an order by the County Court of Van Zandt County, Texas, admitting the will of James B. McGrew ("McGrew") to probate as a muniment of title. Appellees, Martin Gibson and his wife, Sherry Gibson, obtained probate of the McGrew will in order to perfect their title to land previously owned by McGrew. Appellant, Laura Derrick ("Derrick"), the daughter of McGrew, contested the probate of the will. We will affirm.

“At the time of his death on February 6, 1977, McGrew and his wife, Kathleen McGrew, owned a community property interest in certain real property located in Van Zandt County. McGrew was survived by both his wife and Derrick, who was Kathleen McGrew's stepdaughter. Kathleen McGrew, knowing that her husband had executed a will, searched for it without success. She then filed an "Application for Letters of Administration" with the Van Zandt County Court, which was granted on March 29, 1977.

“Soon thereafter, Kathleen McGrew's sister-in-law, Ms. Faynell Hammett ("Hammett"), remembered that Kathleen McGrew had loaned McGrew's will to her to use as a model for her own will. This was done without the knowledge or consent of McGrew, the testator. Hammett returned the will to Kathleen McGrew when she realized that she still had it. While the Van Zandt County administration was still pending, Kathleen McGrew made application to probate the will in Dallas County, Texas. This application was contested by Derrick. On November 10, 1980, the Dallas County Court admitted the will to probate, and copies of the will and the order admitting the will were subsequently recorded in the deed records of Van Zandt County, Texas. However, on July 13, 1982, the Texarkana Court of Appeals reversed the Dallas Court and held that the court's judgment there was void on jurisdictional grounds. The admission was eventually dismissed and no further effort was made by Kathleen McGrew to probate the will.

“Thereafter, on August 6, 1982, Kathleen McGrew conveyed the Van Zandt County property to Rick Preston. By subsequent transactions, the property was conveyed to the Gibsons on August 24, 1987. Two years later Kathleen McGrew died. On February 13, 1990, Derrick gave written notification to the Gibsons that she claimed an interest in the Van Zandt County property as an heir-at-law of McGrew. On December 15, 1992, the Gibsons filed their "Application for Probate" of the McGrew will as a muniment of title which was contested by Derrick. The Van Zandt County Court admitted the will to probate by its September 27, 1993 order.

“In her first point of error, Derrick argues that the trial court erred in admitting the will to probate more than four years after the date of the death of the testator. The Probate Code states, in pertinent part:

No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid; and in no case shall letters testamentary be issued where a will is admitted to probate after the lapse of four years from the death of the testator.[2]

“Under the express language of the Probate Code, the relevant inquiry here is whether the Gibsons were in default in failing to probate the will within four years of the testator's death. A testamentary instrument may be probated as a muniment of title after four years from the death of the testator. Wycough v. Bennett, 510 S.W.2d 112, 115 (Tex.Civ.App.--Dallas 1974, writ ref'd n.r.e.) (instrument may be ordered probated as muniment of title after 4 years from the death of testator, especially when court finds good excuse for delay in filing will for probate); Allen v. Bolton, 416 S.W.2d 906, 910 (Tex.Civ.App.--Corpus Christi 1967, no writ) (when good excuse exists, it is settled in Texas that an instrument shown to qualify may be ordered probated as muniment of title although application for probate is filed more than 4 years after death of testator).

“In the instant case, the Gibsons provided justification for the delay in probate. The evidence shows that the Gibsons did not acquire the Van Zandt County property until ten years after McGrew's death, and did not know of Derrick's claim to an interest in the property until thirteen (13) years after his death. Clearly, the Gibsons were not in default in failing to probate the will within four years of the testator's death.

“Derrick suggests that the Gibsons were nevertheless in default for waiting almost three more years to present the will for probate after learning of Derrick's claim of interest. However, Derrick offers no authority to support this argument. While equitable principles may be considered in determining whether the Gibsons exercised reasonable diligence in presenting the will for probate,[3] the evidence in this case fails to show a lack of diligence. We therefore hold that the Gibsons were not in default.. . .

“In her second point of error, Appellant argues that the trial court erred in admitting the will to probate since Kathleen McGrew had waived any and all rights she had under the will. However, the issue of whether Kathleen McGrew was in default in failing to present the will for probate, or whether she waived her rights under the will is not applicable since the will was probated as a muniment of title. When probating a will for the purpose of establishing a link in a chain of title, "only the default of the party applying for probate of the will is at issue."[4] Moreover, "the default of one proponent does not cut off the right of another proponent, not in default, to probate the will as a muniment of title."[5] We have already held that the Gibsons were not in default in failing to probate the will. Therefore, the trial court did not err in probating the will, regardless of any alleged default or waiver on the part of Kathleen McGrew. Point of error two is overruled.

“In point of error three, Derrick claims that the trial court erred in failing to find that McGrew destroyed the will with intent to revoke it prior to his death. Derrick contends that there were two identical wills executed by McGrew: (1) the "tissue paper" will which was probated, and (2) a "plain paper" will, which could not be found. She asserts that the failure to find the "plain paper" will created a presumption of revocation that was not overcome by the evidence.

“In a will contest instituted prior to the admission of the will to probate, the proponent has the burden of proving that the will has not been revoked.[6] However, when the proponent of the will establishes that the document has been executed with the requisite formalities of a valid will, a rebuttable presumption of continuity is recognized and it is not necessary for the proponent to produce direct evidence of non-revocation.[7] If the contestants of the will produce evidence of revocation to cast doubt upon the continuity of the will, the presumption is rebutted and the proponents of the will must prove, by a preponderance of the evidence, that the will has not been revoked.[8] The evidence of revocation must be substantial before the presumption of continuity is revoked.[9]

“The evidence at trial showed that the will, although written on "tissue paper," was a valid original will. Hubert Townsend ("Townsend") testified that he and Ben L. Lewis signed the will as witnesses, and that they had witnessed McGrew's signature on the will. He stated that McGrew was over the age of eighteen when he signed the will, and that he was of sound mind at the time. He also confirmed that the document was the only will that he had signed for McGrew, and that it had not been revoked to his knowledge. Hammett also testified that she did not believe that the will had been revoked. Based on this evidence, the trial court found, inter alia, that: (1) the McGrew will "is an original will, not a copy and not a duplicate," (2) "Attesting witness Hubert Townsend signed only one will--the McGrew Will," (3) the will was not destroyed or obliterated, and (4) there "is no evidence that Testator ever intended that the McGrew Will be revoked."

“The evidence clearly proved that the will met the basic requirements of a valid will under the Probate Code.[10] Thus, the Gibsons, as proponents of the will, were not required to produce direct evidence of non-revocation unless Derrick presented evidence that cast doubt upon the presumption of continuity. Appellant claims that the testimony of Kathleen McGrew and Hammett, which indicated that there was once a plain paper will that is now missing, destroys the presumption. However, this evidence does not show that McGrew revoked the will that was admitted for probate. There is no evidence that he revoked it by a subsequent writing, or that he destroyed or canceled the will.[11] There is also no evidence that the alleged plain paper will was actually a valid will under the requirements of the Probate Code, or that its existence or loss indicated that the tissue paper will was revoked. Since the evidence does not destroy the presumption of continuity, the Gibsons were not required to produce evidence of non-revocation.

“Derrick cites several authorities on the issue of revocation. However, these cases are not applicable here because each case involves probate of a lost will or a copy of a will, not an original will.[12]

“Even if Derrick had presented evidence raising the issue of revocation, the evidence at trial was sufficient to prove by a preponderance of the evidence that the will had not been revoked. Both Townsend and Hammett testified that they did not believe that the will had been revoked. Moreover, nothing in the circumstances surrounding the will indicates that McGrew intended to revoke it.

“The trial court, as trier of fact and the sole judge of the credibility of the witnesses, is free to draw its own deductions from all the evidence, and is not bound by the testimony of any particular witness.[13] The trier of facts may reject a party's testimony in whole or in part.[14] Once the trier of fact makes its findings, those findings are binding on an appellate court unless they are supported by no evidence or they are so against the great weight of the evidence as to be manifestly unjust.[15]

“In the instant case, the trial court specifically found that the will had not been revoked. In making this finding, the trial court could have reached his conclusion through the supporting testimony of Hammett and Townsend, and could have given little or no weight to Kathleen McGrew's deposition testimony. The trial court's findings of fact are not so against the great weight and preponderance of the evidence so as to be manifestly unjust. Point three is overruled.

“In points of error four and five, which are argued together, Appellant contends that the trial court erred in admitting the will to probate for the reason that the will was illegible and lacked the requisite formalities and solemnities of execution under the laws of the State of Texas. We will address the illegibility question first.

“Appellant asserts that as a result of all the markings, changes, and deletions on the "tissue paper" will by Hammett, the will has been rendered illegible and "reflects more properly what Hammett wants done with her property than it does what McGrew would want done with his property." Appellant relies on Pelton v. Dawley for the proposition that the will should not have been probated given its illegibility.[16] However, in Pelton the court held that two critical words relating to the beneficiary of the testator's property were "too illegible to bear other than speculative deciphering by the court."[17] McGrew's will, which is before us as part of the record, is clearly legible, including the words stricken by Hammett's pen. Moreover, Hammett's testimony unquestionably delineated every mark that she made on the will to the effect that McGrew's purpose and intent was not ambiguous.

“Appellant further argues in her fifth point that the will should not have been admitted to probate because the date of the testator's execution is two years before the date that the witnesses signed the will. This is of no consequence since a will need not be executed by the testator in the presence of witnesses; the testator can sign either before or after the witnesses.[18] Appellant's fourth and fifth points of error are overruled.

“The judgment of the trial court is affirmed.”

* * * * *

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

Revised appellate opinions on rehearing are surprisingly frequent in missing will cases. In Myers, we see a second effort by a court of appeals which brings to mind the old saw, “if at first you don’t succeed, try, try again.”

“The opinion handed down in this case on July 16, 1963, is withdrawn and the following is submitted in lien thereof.

“A Will contest. Appellee, Mrs. Estelle Spharler, filed an application in the Probate Court of Rusk County to probate the lost Will of her husband, Edwin C. Spharler, deceased. The appellants, Mrs. Kathleen Myers, joined by her husband, filed a contest. On June 11, 1962, the probate judge denied the application. On June 15, 1962, appellee found the Will which purported to be the same as the lost Will. On the same date she filed a motion for a new trial. On July 2, 1962, the motion for new trial was overruled. An appeal was taken to the district court.

“After the appeal was perfected, the appellee filed an amended application wherein she sought to probate the Will. The district judge overruled a motion to dismiss the appeal. At the trial, the appellee proved that the Will was substantially the same as the lost Will which she sought to probate in the probate court. The district judge admitted the Will of probate on the amended pleadings. Appellants . . . . say the court erred in admitting the Will to probate and in holding that the Will that was offered for probate in the district court was substantially the same Will as the lost Will which they sought to probate in the county court. The appellee tried to probate the Will in the probate court under Sec. 85 of the Probate Code, 44 T.J. 918. It was proved by the witnesses in the probate court that they had read the Will, and that they had witnessed the same. Such was the proof in the district court. It was further proved that the Will was substantially the same as the lost Will which they had sought to probate in the probate court.

“The jurisdiction of a district court after an appeal is taken in probate proceedings is appellate only. The issues are confined to those made in the probate court. The appellee tried to probate the Will in the probate court. She excepted to the judgment of the probate court and perfected her appeal to the district court. She then filed her amended pleadings, and alleged facts that did not create any new issues. She was merely trying to probate the last Will of her husband. This, she was entitled to do.[19] The points are overruled. . . .

“The judgment is affirmed.”

* * * * *

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

In Gifford, it seems like everyone did everything wrong. An adversary who knows nothing can bail you out if bailment is the one and only allegation. Bailment might be an interesting claim if properly brought in an inappropriate case. Here it is improperly brought in an inappropriate case.

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

“This is an appeal from a summary judgment based upon the statute of limitations. We affirm.

“Appellant’s husband executed his Last Will and Testament in November of 1943, and deposited it with the San Jacinto National Bank, which was appointed executor. This institution later merged with another bank, which then merged into the Bank of the Southwest. Appellant's husband died in February of 1974. On many occasions prior to his death, Mr. Gifford told his wife that the Bank was to be the corporate executor of his estate. In her affidavit in response to appellee's Motion for Summary Judgment, appellant states that she knew the terms of the will and that it should have been on deposit with the Bank of the Southwest since, "I had a copy of the original [w]ill that was dated in 1943 and placed in the Trust Department of San Jacinto Bank, and my husband told me that the Bank of the Southwest was [e]xecutor of the [w]ill." The terms of the will provided that Mr. Gifford's entire estate was to pass to his wife.

“A few days after her husband's death, appellant called the Bank concerning the will. She was informed that the will could not be located. Appellant and her son called the Bank on several occasions only to be advised that the Bank still had not located the will. Because of the Bank's failure to tender the will, appellant states that she was required to probate her husband's estate as if he had died intestate.[20] In May of 1974, the probate court divided Mr. Gifford's estate with one-half passing to appellant and one-half to her son.

“In November of 1982, appellant received a letter from the Bank's trust department addressed to her deceased husband. This letter stated that the Bank valued Mr. Gifford's involvement in its trust group and requested information to help the Bank update its trust department records. When appellant telephoned to inquire about the meaning of the letter, she discovered that the Bank had located her husband's will.

“In July of 1984, appellant sued the Bank,