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, alleging a breach of its contract of bailment.[21] The Bank asserted that appellant's cause of action was barred by TEX.REV.CIV.STAT. art. 5529, the statute of limitations applicable to contract actions.1[22] The sole issue presented to us is when appellant's cause of action accrued. Appellant argues that it accrued in November 1982, when she discovered the Bank had located the will. The Bank, on the other hand, asserts that it accrued in 1974, when appellant learned that the Bank could not locate the will.

“In her first point of error, appellant contends the trial court erred in granting appellee's Motion for Summary Judgment because the Bank was estopped from relying on the defense of limitations. Our review of the record indicates that appellant failed to plead estoppel specifically. To rely on that affirmative defense, a party's pleadings must allege with particularity the facts necessary to establish estoppel.[23] Where, as here, it appears on the face of appellant's petition that her action is barred by limitations, she, as nonmovant, has the burden of producing summary judgment evidence sufficient to raise a fact issue on estoppel.[24]

“Appellant has failed in her burden. Her Second Amended Original Petition specifically alleges estoppel, but the trial court apparently struck this pleading. Appellant proceeded with the summary judgment hearing on her Amended Original Petition. Appellant has not alleged error in the trial court's refusal to consider her Second Amended Original Petition and has waived any error.[25] . . .

“In her second point of error appellant asserts that limitations were tolled by the "discovery rule" or by the Bank's concealment of the facts. Appellant had the burden of presenting sufficient summary judgment evidence to raise a fact issue on fraudulent concealment. Appellant has failed to meet this burden. Therefore, her allegations of fraudulent concealment will not defeat appellee's right to summary judgment.[26]

“Appellant was fully aware of the facts giving rise to her cause of action in May 1974, when her husband's estate was probated without the will that should have been in the Bank's possession. A statute of limitations begins to run at the time the wrong was or should have been discovered, not from the date of the wrongful act or omission.[27] Here appellant knew in 1974 that the Bank should have had the will. She made demand on the Bank at that time for delivery. As a result of the Bank's failure to deliver, appellant suffered injury. These facts were sufficient to allow appellant to sue the Bank for a breach of its contract of bailment. They were known to her in 1974, and her cause of action against the Bank accrued at that time. She did not need to allege that the Bank actually possessed the will in 1974. She was required to allege merely that a bailment existed and that the Bank, as bailee, failed to return the bailed property.[28] Since appellant was aware of the facts giving rise to her cause of action in 1974, the suit she filed in 1984 is barred by limitations. . . .

“The trial court's judgment granting appellee's Motion for Summary Judgment is affirmed.

* * * * *

The Patient Accountant Caper.

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

Some lawyers think accountants are dull, but this case shows how an accountant can make life all too interesting.

“An alleged will and an alleged codicil case. Both were contested. There were two separate jury trials in the District Court. The first jury could not reach a verdict. Proponents filed a motion for a mistrial. Contestant filed a motion for judgment, and, in the alternative, a motion for judgment as to the alleged will and a separate trial on the alleged codicil. Proponents' motion for a mistrial as to the alleged will was overruled, and a mistrial was granted as to the alleged codicil. Contestant's motion was granted for an interlocutory judgment denying to probate the alleged lost will, and separate trial as to the alleged codicil was ordered.

“In the second trial, the jury found that there was no alleged codicil. Proponents-appellants have perfected their appeal and have brought forward twenty points of error.

“HISTORY

“James Harvey Simms was born October 5, 1868. He died October 31, 1938. He was married to Mary Webb Simms. She was born April 8, 1874, and died April 14, 1947. To this union two children were born who died shortly after birth.

“Mary W. Simms had two sisters who lived in their home; viz: Nannie Webb and Dean Webb. Neither of them ever married.

“James Harvey Simms had one brother, A. L. (Lem) Simms who was a partner with James Harvey Simms in a country store. They owned many tracts of land together, and they probably did some farming and raising some cattle and hogs in the partnership.

“Lem Simms had one daughter, Mary Simms Johnson. Mrs. Johnson died leaving two children, viz: Bill Johnson and Betty Lee Johnson Schultz.

“James Harvey Simms had the following sisters; viz: Ada Simms Hart, Fannie Simms Rouse, Carrie Simms Johnson, Miss Nettie Simms, Miss Mary Simms and Miss Mattie Simms. All of the sisters died without issue, except Ada Simms Hart. Mrs. Hart had four children, viz: B. H. Hart, Lola Hart Poer, Sue Hart Petty, and Mattie Hart. B. H. Hart and Mattie Hart died without issue.

“Lola Hart Poer, deceased, had six children, viz: Marie Poer Chambers, Willie Vanita Poer May, Ada Lou Poer McNutt, Marvin Poer, Katy Jo Poer McReynolds, and Mattie Bess Poer Jones. Mrs. May died leaving one child, Francis Vanita May, NCM. Her father, Ray May, was appointed her guardian.

“Sue Hart Petty, deceased, left two children, viz: James Petty and Betty Sue Petty Law.

“While there was a post office at Simms, Texas, James Harvey Simms was the postmaster. The post office was located in the county store that belonged to the Simms brothers. Nannie Webb worked in the post office. Dean Webb taught school at the James Bowie School, helped with the house work and helped look after the cattle. Lem Simms looked after the farming interest, the cattle and the hogs.

“Earl C. Overall of Greenville, Texas, testified that he was an accountant and had been preparing the income tax returns for the Simms brothers since 1922. He further testified that he went to Fort Worth, Texas, with James Harvey Simms in June of 1927, for the purpose of James Harvey Simms to make and execute his last Will and Testament. Overall testified that the alleged will was prepared by Lee Tidwell. He also testified that in the year 1938, in May or sometime shortly thereafter, he and his twin brother, Earnest C. Overall, a lawyer from San Antonio, Texas, went fishing on Sulphur River, in Bowie County, Texas, and stopped by the home of James Harvey Simms, who told the Overall brothers that he wanted to write a 'codicil' to his alleged will and make some changes. Earl C. Overall testified that he told James Harvey Simms that he did not know anything about how to write a will or a codicil, but his brother, Earnest C. Overall, was a lawyer and he could help him.

“Earnest C. Overall testified that he made some notes and dictated the alleged codicil to James Harvey Simms who wrote the codicil in his own handwriting.

“Both the Overalls testified that James Harvey Simms in the alleged original will had left all his property to his wife during her lifetime and at her death, his interest was left to his next of kin, or to certain nieces. We will have to assume, from the Overalls testimony, that the beneficiaries under the alleged original will would take the property after the death of Mary W. Simms to share and share alike.

“Under the alleged codicil, the alleged original will was changed so at the time of the death of testator, the following alleged bequests were made:

1. James Bowie Common School District Bowie County, Texas, $125,000.00

2. Lola Poer, 40,000.00

3. Sue Petty,30,000.00

4. Mattie Hart, 5,000.00

5. _____ Simms, 25,000.00

6. _____ Simms, 5,000.00

7. Earl C. Overall, The Hall Farm, Bowie Count, Texas

“Lem Simms owned a one-half interest in the Hall Farm. James Harvey Simms only owned one-fourth and Mary W. Simms owned one-fourth.

“The alleged beneficiaries under the alleged codicil are the proponents to try to probate the alleged lost will and codicil. The original application was not filed until March 31, 1966; twenty-seven years and five months after the death of James Harvey Simms.

“MORE HISTORY

“The Overall brothers, one of them a lawyer, testified that James Harvey Simms told them that he was the father of two 'woods-colts' (illegitimate children). They did not testify that he told them the name or names of their mother or mothers, or the given name of the illegitimate children. They testified that he said they had 'blackmailed' him out of Twenty Thousand ($20,000.00) Dollars.

“Nannie Webb died March 4, 1963. Dean Webb is still living. She is 90 years old; her health is extremely poor. She is blind in one eye, can see only a 'bulk' out of the other, and is extremely hard of hearing.

“STILL MORE HISTORY

“In February, 1964, Earl C. Overall made the Income Tax Returns of Nannie Webb, deceased, and Dean Webb. After the returns were prepared, Dean Webb asked what was the charges for his service. He replied that it was $200.00. She handed him her check book and told him to write the check for that amount. He wrote the check and she signed it. He returned and made her Income Tax Return in 1965.

“The check that Dean Webb gave to Earl C. Overall in 1964 was materially altered. According to a handwriting expert, Charles Andrew Appel, Jr., from Washington, D.C., there were eight (8) different ball point pens used on the check. The principal sum had been changed from $200.00 to $2200.00. All the changes and alterations were made by Earl C. Overall. The first '2' in the $2200.00 was written in and was out of line with the rest of the figure. The word 'Twenty' was written on the second line of the check. The check was dated '1-16-63'. In the lower left-hand corner of the check, Overall wrote: 'Expense 1963 Returns, $200.00'. He then added below the above notation: 'Fee Misses Nannie & Dean Returns Past 10 years $2000.00'. He then wrote across the left-hand end of the check: 'Cash 1965 or 1966'. He cashed the check March 8, 1965. All the above alterations were made after the check was written. On June 22, 1965, Dean Webb filed a civil suit against Earl C. Overall to recover the $2,000.00 that had been altered into the $200.00 check.

“After the unsuccessful efforts of the Overall brothers, one a lawyer, to stop the litigation over the $2,000.00, they broke their long silence concerning the alleged will and alleged codicil. Earl C. Overall went and talked with the Superintendent of the Simms Independent School District, formerly, James Bowie Common School District. No one from the School District testified in the case. He then contracted the heirs of the nieces that where supposedly named in the alleged codicil.

“The original application to probate the alleged will and the alleged codicil was filed in the County Court on March 31, 1966. On May 23, 1966, Earl C. Overall executed a 'Disclaimer Agreement' which reads as follows:

'DISCLAIMER AGREEMENT

THE STATE OF TEXAS

COUNTY OF BOWIE

KNOW ALL MEN BY THESE PRESENTS:

“THAT I, EARL C. OVERALL, of Greenville, Hunt County, Texas, have claimed no interest in the Estate of James Harvey Simms, deceased, since the year 1947, and to avoid any dispute or uncertainty in connection therewith, I do hereby renounce and disclaim all interest which I may have or could have had in and to the Estate of James Harvey Simms, deceased, by reason of the provision of a Codicil to his Last Will and Testament, which Codicil was dated approximately in June 1938 and filed for probate on the 31st day of March, 1966, in the County Court of Bowie County, Texas; and I do hereby release and forever discharge the said estate, and devisees and beneficiaries thereof, and every part thereof, from any and all claim or claims or interest which might have accrued or hereafter may accrue to me by reason of the terms of said Codicil to said Will, it being agreed and understood that the undersigned, nor his heirs or assigns, or anyone claiming under him, will at any time hereafter assert any claim or interest of any name, nature or kind in or to said estate or any portion thereof by reason of the provisions of said Codicil to said Will.

'WITNESS MY HAND at Greenville, Texas, this 23 day of May, 1966.

/s/ EARL C. OVERALL

EARL C. OVERALL'

(The Disclaimer Agreement was acknowledged before E. K. Massey, Notary, Hunt County, Texas).

“OPINION

“Proponents-appellants have grouped their twenty points of error into six groups. By their first group, they say the trial court erred in granting an interlocutory judgment as to the alleged 1927 will; in overruling their motion for a mistrial; and, in denying a jury trial on the issues pertaining to the alleged 1927 will.

(In their briefs, the appellants and the appellee refer to the alleged original will as the '1928' will. The record reflects that if there was any such will, it was executed in June '1927'. The alleged will will be discussed in this opinion as the 'alleged '1927' will').

“The second group of errors are next given and will be discussed with the first group. By their second group, they say the trial court erred in refusing to admit into evidence testimony pertaining to the contestant's-appellee's knowledge of the alleged 1927 will and the alleged 1938 codicil, including their destruction and concealment thereof; in refusing to admit into evidence the testimony of Earl C. Overall pertaining to his personal observation of the execution of the alleged 1927 will; in refusing to admit into evidence the testimony of Earl C. Overall pertaining to the admissions against interest of appellee that she knew of the alleged will and the alleged codicil; in refusing to admit into evidence the testimony of Earl C. Overall pertaining to the admissions against interest of appellee's alleged co-conspirators, her sisters; in refusing to admit into evidence the testimony of Earl C. Overall pertaining to the admissions against interest of appellee that she knew of the contents of the alleged will and the alleged codicil and that she had destroyed them; and, in refusing to admit into evidence the testimony of earl C. Overall pertaining to the admissions or declarations of appellee's alleged co-conspirators, her sisters, that they knew the contents of the alleged will and the alleged codicil and that they had been destroyed.

“This case has been tried twice in the District Court of Bowie County. At the first trial in February, 1967, the jury was unable to reach a verdict. The trial court granted a motion by appellee for an interlocutory judgment denying to probate the alleged June 1927 will, but the trial court allowed a separate trial as to the alleged 1938 codicil. The second trial as to the alleged 1938 codicil was held in February, 1968. The jury found that James Harvey Simms DID NOT execute an alleged holographic codicil in 1938.

“Apparently, the trial court found that the appellants had failed to produce the necessary evidence as to the due execution of the alleged 1927 will for admission to probate. The only proof they offered about the witness, Lee Tidwell, was by Earl C. Overall that he 'understood he is dead' and that 'understanding' was 'only through hearsay'. There was no proof as to the signature of James Harvey Simms, Lee Tidwell or the other man who supposedly witnessed the alleged 1927 will. The other witness was never identified.

“Section 84, Texas Probate Code, applicable to this case, reads as follows:

' § 84. Proof of Written Will Produced in Court

'(b) Attested Written Will. If not self-proved as provided in this Code, An attested written will produced in court may be proved:

'(1) By the sworn testimony or affidavit of one or more of the subscribing witnesses thereto, taken in open court.

'(2) If all the witnesses are non-residents of the county, or those who are residents are unable to attend court, by the sworn testimony of any one or more of them by deposition, either written or oral, taken in the same manner and under the same rules as depositions taken in other civil actions; or, if no opposition in writing to such will is filed on or before the date set for hearing thereon, then by the sworn testimony or affidavit of two witnesses taken in open court, or by deposition in the manner provided herein, to the signature or the handwriting evidenced thereby of one or more of the attesting witnesses, or of the testator, if he signed the will; or, if it be shown under oath to the satisfaction of the court that, diligent search having been made, only one witness can be found who can make the required proof, then by the sworn testimony or affidavit of such one taken in open court, or by the deposition in the manner provided herein, to such signatures or handwriting.

'(3) If none of the witnesses is living, or if all of such witnesses are members of the armed forces of the United States of America or of any auxiliary thereof, or of the armed forces reserve of the United States of America or of any auxiliary thereof, or of the Maritime Service, and are beyond the jurisdiction of the court, by two witnesses to the handwriting of one or both of the subscribing witnesses thereto, or of the testator, if signed by him, and such proof may be either by sworn testimony or affidavit taken in open court, or by deposition, either written or oral, taken in the same manner and under the same rules as depositions taken in other civil actions; or, if it be shown under oath to the satisfaction of the court that, diligent search having been made, only one witness can be found who can make the required proof, then by the sworn testimony or affidavit, of such one taken in open court, or by deposition in the manner provided therein, to such signatures or handwriting.

'(b) Holographic Will. If not self-proved as provided in this Code, A will wholly in the handwriting of the testator may be proved by two witnesses to his handwriting, which evidence may be by sworn testimony or affidavit taken in open court, or, if such witnesses are non-residents of the county or are residents who are unable to attend court, by deposition, either written or oral, taken in the same manner and under the same rules as depositions taken in other civil actions.'

Section 85, Texas Probate Code, relating to 'Proof of Written Will Not Produced in Court' reads as follows:

'A written will which cannot be produced in court Shall be proved in the same manner as provided in the preceding Section for an attested written will or an holographic will, as the case may be, and the same amount and character of testimony Shall be required to prove such will as is required to prove a written will produced in court; but, in addition thereto, the cause of its non-production must be proved, and such cause must be sufficient to satisfy the court that it cannot by any reasonable diligence be produced, and the contents of such will must be substantially proved by the testimony of credible witness who has read it or heard it read.'

“Appellants contend that Sec. 85, Texas Probate Code is permissive, and is not mandatory. They rely upon 61 T.J.2d 504, and 505 Secs. 432 and 343, and Miller v. Miller, Tex.Civ.App., 1955, 285 S.W.2d 373, N.W.H. There is not a case cited under either section that holds that the 'execution' of a will not produced in court 'may' be proved by evidence other than that required by Secs. 84 and 85, Tex.Pro.Code. McClusky v. Owens, Tex.Civ.App., 1953, 255 S.W.2d 939, W.R., specifically holds that proof of a lost holographic will 'MUST' be made according to the statutory provisions. In Sec. 85, Tex.Prob.Code, the mandatory word 'shall' is used. In the first sentence of 61 T.J.2d 504, Sec. 342, the permissive word 'may' is used. We hold that the Sec. 85 Tex.Prob.Code is mandatory. 53 T.J.2d 267, Sec. 179, and the cases cited therein.

“Hon. R. Dean Moorhead, one of the draftsmen of the Texas Probate Code, in the 'FOREWORD' to the Probate Code, said in part, as follows:

'The Texas Probate Code was not designed to make any radical changes in the former probate law. Despite the fact that most of the Texas probate statutes were enacted in 1848 and have remained unchanged since their reenactment in 1876, the bulk of the statutes are still workable and suited to modern conditions. However, some of them were ambiguous, were couched in archaic language, and left wide gaps in which the bar could only guess as to the applicable law . In addition, largely as the result of piecemeal amendments and additions adopted since 1876, the statutes contained many conflicts. The primary goal of those who worked on the Code was to eliminate the conflicts, to clarify the ambiguities, to fill the gaps, to modernize some of the language, and otherwise to deal with particular statutes which had proved productive of problems. At the same time, however, changing any statute unless a change was changing any statute unless a change was deemed necessary for one of the aforementioned reasons. The language and grammar of a statute were altered only when they had proved troublesome. Precise grammarians, therefore, will find in the Code many split infinitives, dangling participles, and other grammatical misdemeanors.

'The Code does, however, change and add to the former law in many respects; and unwise indeed will be the attorney who proceeds under the Code with the blithe assumption that all the law thereunder is the same as it has been in past years.'

“Earl C. Overall, an accountant, and Earnest C. Overall, a lawyer, owed the beneficiaries and the State of Texas the moral obligation and duty to promptly report the alleged 1927 will and the alleged 1938 codicil shortly after the death of James Harvey Simms on October 31, 1938. Earnest C. Overall, a lawyer, supposedly dictated the alleged 1938 codicil. According to his testimony, he knew about the death of the testator in 1940. Being a lawyer, he knew that limitation would have a serious effect on their probation after the expiration of four years. And, we would assume that Earl C. Overall knew about the limitation period, also, as he was one of the beneficiaries under the alleged codicil. Although, they chose to keep extremely quiet until after Earl C. Overall had altered the check and was sued for $2,000.00.

“Section 75, Tex.Prob.Code, reads as follows:

'Upon receiving notice of the death of a testator, the person having custody of the testator's will shall deliver it to the clerk of the court which has jurisdiction of the estate. On 'sworn written complaint' and 'any person' has the last will of any testator, or any papers belonging to the estate of a testator or intestate, the county judge shall cause said person to be cited by personal service to appear before him and show cause why he should not deliver such will to the court for probate, or why he should not deliver such papers to the executor or administrator. Upon the return of such citation served, unless delivery is made or good cause shown, if satisfied that such person had such will or papers at the time of filing the complaint, such judge may cause him to be arrested and imprisoned until he shall so deliver them. Any person refusing to deliver such will or papers shall also be liable to any person aggrieved for all damages sustained as a result of such refusal, which damages may be recovered in any court of competent jurisdiction.'

“This section does not put any civil or criminal liability on the Overall brothers, but such a section could be of some benefit to certain future beneficiaries and to the State of Texas. In the case of Van Orden v. Pitts, Tex.Com.App., 206 S.W. 830, opinion adopted by Sup.Ct., Judge Montgomery had this to say:

'The facts are that John M. Gardner was the sole heir at law of Mrs. Morphis, and in the absence of a will would have taken the entire estate. The will of Mrs. Morphis was discovered by him about one year after her death, and after such discovery he concealed the existence of such will and failed to offer the same for probate, and took possession of all the moneys and property of the testator, and claimed and used the same as his own, ignoring the rights of the other devisees in the will. Mrs. Van Orden had no knowledge of the existence of the will until a short time before this suit was instituted.

'We think that John M. Gardner, when he discovered the will, was at least under a moral obligation to either offer it for probate or disclose the fact of its existence to the other beneficiaries named in said will and give them an opportunity to offer the same for probate. This conclusion is so clearly in consonance with justice that no authorities ought to be necessary, but the point has been decided.[29]

'In several jurisdictions an executor named in a will who failed to produce the will for probate is liable to a penalty or indictment [30] '

“If such will and codicil had in truth and fact existed, the Overall brothers owed the officials of the school district, and the other beneficiaries, the moral obligation and duty to promptly report to them of their existence immediately after the death of the testator. They knew the limitation period was four years. Instead, they kept extremely quiet for more than twenty-seven years, and after Earl C. Overall had been sued for $2,000.00; the amount of which he had altered a check.

“In order to probate an alleged lost will and holographic codicil (twenty-seven (27) years and five (5) months after the death of the testator) requires proof that all of the witnesses required by law to attest the alleged lost will be produced to testify as to whether they attested it and whether it was duly executed, if the production of such witnesses is possible; provided they are alive and within the jurisdiction of the Court.[31] In this case, only one alleged witness was proved; Lee Tidwell. It was not positively proved that Lee Tidwell was dead, nor whether or not he was in the jurisdiction of the Court. The other witness was not named. There is no evidence as to whether or not he is living or dead, nor whether or not he is in the jurisdiction of the Court. This must be done by the Witnesses to the will, or their failure to make such proof be duly accounted for, Before secondary evidence of such facts can be offered.[32]

“The alleged lost will and codicil was seen, according to the testimony of the witnesses, the Overall brothers, in the possession of James Harvey Simms. Under the facts in this case (if James Harvey Simms did execute a will and codicil) it is presumed, as a matter of law, that the alleged will and codicil were revoked. The burden was on appellants to prove the contrary by clear and satisfactory proof.[33]

“The witnesses, Overall brothers, for appellants testified that Dean Webb told them on several occasions that she, Dean Webb, had destroyed the alleged will and codicil. The testimony that Mary W. Simms told them that the 'girls' (Nannie and Dean) had taken the alleged will and codicil from a drawer is no proof that either of them had destroyed them either before or after the death of the testator. This testimony is hearsay in nature.[34]

“There are two exceptions to the 'hearsay rule'. They are: 1. Declarations against interest; and, 2. Admissions of a party. Neither of these exceptions apply to this case. A declaration against interest is defined as a statement opposed to a pecuniary or property interest of a witness.[35] A declaration against interest is not admissible unless the declarant is unable to testify by reason of death, illness, or sanity.[36]

“Nannie Webb and Dean Webb did not own any interest in the Estates of James Harvey Simms and Mary W. Simms until after the death of Mary W. Simms (April 14, 1947). These two exceptions, under Texas law, are to be governed by the ownership of the witness at the time the admissions or declarations are made.[37]

“The evidence is fully sufficient to support the jury's answer that there was 'NO' codicil executed in 1938.

“Anyway, the evidence was wholly insufficient in the first trial to admit the alleged 1927 will to probate. There was no error in the trial court granting the interlocutory judgment denying the alleged 1927 will to probate. There is no error shown as to why the alleged 1938 codicil should not be admitted to probate. The points of error are overruled.

“We have carefully considered appellants' points of error 9 through 20, find them to be without any merit, and they are overruled.

“The judgment of the trial court is affirmed.”

* * * * *

It helps if the Court Likes You

In Caples, the court suggests that the husband who had access to the Will destroyed the Will, because the court thinks he would do so and the decedent would not. The testator could have revoked her Will by destruction. The court doesn’t believe that she did. The result is not necessitated by the facts. The result reflects the court’s suspicions about a husband. If the court had liked and believed the husband, an opinion could “spin” the facts to find that the wife had possession of her Will (as she told her lawyer she did) and she presumably destroyed in with intent to revoke because she changed her mind and did not like the dispositions in the Will. The court could recite that the husband searched high and low and couldn’t find it, and that he did this altruistically, although he knew he would benefit from intestacy. The point is simple. The result favors the party the court likes, not the party the court dislikes. Likability matters.

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

“This is a will contest. The deceased, Josephine Eva Caples, died without children on December 14, 1980. Her heirs at law included her husband, O.C. Caples, appellee herein, Steve Marasovich, a brother, appellant herein, as well as another brother and three sisters.

“In the trial court, appellant offered for probate a copy of a will of the deceased, the original of which had been dated July 26, 1976. Appellant alleged that the original of the will was lost. Appellee contested the application to probate the "lost" will, and requested that he be appointed administrator of the estate.

“Trial was to a jury and at the conclusion of the presentation of the case for the proponent of the will, a motion for instructed verdict was granted and the trial court entered judgment that the deceased died intestate. It is from this judgment that appellant brings this appeal.

“In his second point of error, appellant contends that the trial court erred in directing a verdict in favor of appellee at the close of appellant's case. In considering this issue, we review the evidence in its most favorable light in support of appellant's position, disregarding all contrary evidence and inferences.[38]

“If believed by the jury, the trial evidence was sufficient to demonstrate that the deceased had an excellent, loving relationship with her siblings and their families, but a very poor relationship, especially with regard to financial matters, with her husband, the appellee; that the deceased had made the will in question; that she knew the consequences of having no will; would not have been inclined to revoke her will or to die intestate; that she intended to provide for her niece and nephew upon her death; that she kept her will at her and appellee's home; that she had stated to her lawyer shortly before her last illness that she had the will.

“In addition, there was evidence that when appellee learned from the deceased's attorney that he was to receive only three hundred dollars a month under her will, he stated to the attorney that he was not sure whether he could live on that amount of money and took a copy of the will to consult another lawyer. Other testimony showed that the deceased kept her important papers in her house; several witnesses testified, and appellee conceded, that much of the home was in disarray as a result of appellee's search for a will through the deceased's personal items. Finally, the jury was entitled to infer that appellee's intestate share was far more valuable than three hundred dollars per month.

“We hold that the evidence created a fact issue as to whether the original of the deceased's will was lost or destroyed by appellee and that these issues should have been submitted to the jury for resolution.

“We recognize the rule that when a will in the testator's possession cannot be produced after his death, the proponent of the will must assume the burden of proving that the testator did not destroy the will with an intention to revoke it.[39] The "presumption that [the will] was revoked by the testator stands in the place of positive proof to that effect and he who seeks to establish the will assumes the burden of overcoming the presumption by producing facts and circumstances contrary thereto or that it was fraudulently destroyed by some other person."[40] The presumption that the testator has destroyed his will with the intent to revoke it is not conclusive and thus may be rebutted; "[i]f rebuttal testimony is offered then a question of fact is presented for a court of jury."[41] Thus, when there is evidence both that the will existed and that it was surreptitiously withdrawn from the possession of the testator, the presumption of revocation may be repelled, and it is not permissible for the trial judge to peremptorily instruct the jury against such evidence.[42]

“In the case before us, the evidence was sufficient to create a fact issue for the jury.”

A nonsuit may not be valid.

* * * * *

Beware! If you nonsuit and expect to try the issue later, it might not work.

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

“The question presented is whether the trial court should have dismissed with or without prejudice an action for the probate of a will when the proponents moved for a nonsuit after all of the parties to this three-sided suit had closed. The court of civil appeals reversed the trial court's order dismissing the action without prejudice and rendered judgment dismissing the application to probate with prejudice.[43] We affirm the judgment of the court of civil appeals.

“Elizabeth Chesbro filed her application for the probate of Frank Stelzig's will dated September 16, 1971. Thereafter Willie Mae O'Brien, Leona Tucker, and Lorraine Brunson intervened in the same action and filed their application for the probate of an earlier lost will that they alleged Stelzig had executed on July 20, 1965. Six of Stelzig's heirs filed a contest to the probate of both wills.

“We have before us a partial statement of facts and record, but they are enough to show that the case commenced on August 31 and continued until September 7, 1978, when the court dismissed the action. Ms. Chesbro, the proponent of the 1971 will, first presented her evidence. The proponents of the lost will then presented their evidence; the two proponents and the contestants closed, but before the charge was read to the jury, the contestants moved that the court instruct a verdict against the proponents of the 1965 lost will.

“At that stage, the case had been fully tried by the proponent of the 1971 will, the intervenors, and the contesting heirs. The trial court, after hearing the motion for instructed verdict and inviting the intervenors to move for a nonsuit, dismissed their application for probate without prejudice to their refiling the case. The application for probate of the 1971 will was then submitted to the jury. After this submission, the trial court rendered a judgment denying probate of the 1971 will. There was no appeal from this denial. The only remaining question is thus whether the trial court erred in dismissing the intervenors' action without prejudice.

“Intervenors fully tried their case. A jury was selected, and intervenors presented oral and deposition testimony in support of their application. They then called an attorney to testify about his preparation and Mr. Stelzig's execution of the 1965 will. The attorney testified that Mr. Stelzig frequently rewrote and revised his will, revoking each prior will. The witness stated that he delivered the 1965 will to Mr. Stelzig. That was the last time the will was ever seen. There was evidence that Mr. Stelzig had employed a number of other attorneys to rewrite his wills, and that he executed several later wills. The attorney for the intervenors in this proceeding testified that he had made an unsuccessful search for the 1965 will. Intervenors' attorney then introduced Ms. Chesbro's deposition about an executed 1968 will which was also lost. Nobody sought probate of that will.

“The grounds asserted to support the motion for instructed verdict against the intervenors application to probate the lost 1965 will were that (1) Stelzig's execution of several subsequent wills constituted a revocation of the 1965 will, (2) intervenors failed to account for the 1965 will which was last in Stelzig's possession and they, therefore, did not overcome the presumption that he destroyed it, and (3) the intervenors did not comply with Section 128(b) of the Probate Code.

“As a matter of law, from this record, the proponents of the 1965 will did not prove its non-revocation and the burden of proving non-revocation was theirs.[44] The trial court should have instructed the verdict against the intervenors' application to probate the 1965 will.

“The motion for instructed verdict also stated that Section 128(b) of the Probate Code requires a proponent of a lost will to serve all the heirs by personal service. All Stelzig heirs appear to be parties to this action except one niece. The intervenors have not urged by crosspoint in the court of civil appeals, by point in their motion for rehearing in that court, nor by point in this court that the absence of an heir constituted good grounds for the trial court's dismissal of their action, with the right to refile it. It was the intervenors who failed to cite the heir by personal service, since they were the ones relying upon the lost will.

“Prior to the commencement of the trial, counsel for Ms. Chesbro had on two prior occasions urged to the judge's predecessor on the bench that there was an absence of a necessary party. Both times the objection was overruled. Later, these counsel, in support of a motion for continuance, urged for the third time that the intervenors had not served all necessary parties. In those earlier proceedings, intervenors resisted the motions which would have compelled them to bring in the missing heir. Intervenors had full knowledge from these pre-trial proceedings that they had failed to serve the missing party. They were not surprised when the contestants urged the same objection for the fourth time in their motion for instructed verdict.

“Intervenors' argument throughout this case has been that the trial court has discretion to dismiss a suit without prejudice upon motion for nonsuit and that the court exercised that discretion. This court's Rule 164,[45] was originally adopted verbatim from Article 2182 which was enacted in 1853.[46] Under that former rule, one could take a nonsuit "(a)t any time before the jury has retired . . . ." One's right to a nonsuit was absolute.[47]

“Rule 164 was changed in 1975. The amended rule, which became effective on January 1, 1976, cut off the right to a nonsuit at the time the party rested his case. The rule now provides:

“Upon the trial of any case at any time before plaintiff has rested his case, i. e., has introduced all of his evidence other than rebuttal evidence, the plaintiff may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief.

“The purpose of the rule was briefly expressed in the court's order which promulgated the rule. That order stated, "The rule permits non-suit up to time the plaintiff rests his case."[48] In our opinion in City of Houston v. Sam P. Wallace and Co.,[49] we later wrote: "Rule 164,[50] forbids a nonsuit after a plaintiff has introduced all of his evidence other than rebuttal evidence."[51]

“The intervenors, our petitioners, urge only three points before us. They say that the court of civil appeals erred in holding that Rule 164 prohibits a nonsuit after they rested, in failing to recognize the trial court's discretion, and in rendering judgment with prejudice since there is no showing that the trial court abused its discretion.

“We do not hold that there are no situations in which a trial court may exercise discretion even though the trial has progressed beyond the rule's point of no return, but this case does not present one of those situations. One should not be permitted to take a nonsuit so that he can have another day and another try after he has announced ready, picked a jury, and heard and seen all of the witnesses unfold all of the contentions of a three-sided controversy that has proceeded to the point that all parties have closed after a trial that lasted a week. Under such circumstances, one may not prevent a final judgment on the merits by moving for a nonsuit.[52] While circumstances may arise which, in a court's discretion, constitutes grounds for a nonsuit late in a trial, intervenors make no suggestion that another trial would enable them to produce any more evidence than has already been presented.

“The judgment of the court of civil appeals, reversing the judgment of the trial court, is affirmed.”

* * * * *

Howard Hughes’ Multifaceted Contribution to the Law of Missing Wills

The issues dealt with in Howard Hughes Medical Institute v. Lummis, which is covered in a separate course, were only the beginning of the contribution Hughes and the Hughes Estate made to the law of missing Wills. In Neff, the court addresses multiple lost Wills, proof of execution, proof of contents of the Will, unknown witnesses, standing, multiple states, full faith and credit to judgments of other states, hearsay, ancient documents, and cy pres. The court left the determination of domicile to the U.S. Supreme Court where it was pending. Money and mystery are a breeding ground for litigation.

* * * * *

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

“This is an appeal from a judgment of the probate court of Harris County, denying and dismissing an application for probate of either of two alleged wills of Howard Robard Hughes, Jr. The application was filed by the Howard Hughes Medical Institute (hereafter HHMI or appellant) as the principal beneficiary of a lost will supposedly executed sometime between 1953 and 1963 or as the intended beneficiary or beneficiary under the cy pres doctrine of a lost will allegedly dated and executed on May 30, 1925. The State of Texas and the court-appointed attorney ad litem for unknown heirs, appellees herein and contestants in the court below, moved for a hearing in limine to require that HHMI prove its standing as a party interested in the Hughes estate. Contestant Neff, the executor of an aunt of Hughes, filed a motion for summary judgment. Contestants McIntyre and Bond, a cousin of Hughes and the executor of the estate of a cousin of Hughes, respectively, also filed a joint motion for summary judgment. Since the questions of the existence and validity of any will and HHMI's position to benefit therefrom relate to the standing issue, the parties agreed to conduct the evidentiary hearing on standing and the hearing on the motions for summary judgment together. This hearing was conducted on December 2, 1980. On February 27, 1981, the trial court signed a judgment ordering that contestants are entitled to judgment as a matter of law, and denying and dismissing HHMI's application for probate. The question for this Court is whether the record on appeal will sustain the judgment dismissing the application for probate on the basis of any of the issues raised below by the motions for summary judgment or by the in limine evidentiary hearing on the standing question. We find that the record will sustain the judgment and accordingly affirm.

“Howard Robard Hughes, Jr. died on April 5, 1976. Since his death, much time and money has been spent in conducting searches to determine whether Hughes left a will. Shortly after his death, a Superior court in California ordered a will search there discontinued. Two years later, that same court found that Hughes died intestate. While the California proceeding was pending, HHMI filed a petition for probate of one or another of the alleged lost wills in a Nevada district court. That court entered a summary judgment adverse to HHMI. The judgment of the Nevada trial court was subsequently affirmed by the Nevada Supreme Court.[53] During the pendency of the Nevada proceeding, HHMI entered an appearance in the Texas probate court. However, no application for probate was then filed. Pursuant to this appearance Hughes’ heirs moved for a summary judgment to have the court below declare that HHMI’s claim as a beneficiary under an alleged will was invalid. The probate court granted the motion in favor of the heirs. This Court reversed, holding that the declaratory judgment was an 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.[54] Coming dangerously close to the expiration of this four year period, HHMI filed its Texas application for probate. At the December 2, 1980 hearing on motion to show interest and motions for summary judgment, HHMI offered much of the record developed in Nevada, since the will offered for probate there was the alleged 1953-1963 or 1925 will offered in the court below. It is for this reason and because HHMI invoked the jurisdiction of the Nevada courts that appellees Neff, McIntyre and Bond all urge this court to give full faith and credit to the judgment of the Nevada court.[55] . . .

THE ALLEGED LOST WILLS

“Appellant relies on the following facts to establish its claim under a will allegedly executed sometime between 1953 and 1963, or in the alternative, a will allegedly executed on May 30, 1925: In a letter to Hughes dated January 31, 1929, Frank Andrews, Hughes’ lawyer, referred to a copy of the ‘will you executed ... [on] May 30, 1925.’ That letter also states, ‘Except as to dates and witnesses, this is an exact copy of the will you executed.’ An unsigned file copy of a will bearing the handwritten date ‘May 30, 1925’ was found in Frank Andrews’ files. The copy provided for the disposition of the bulk of Hughes’ estate to a medical research institute (the Howard Hughes Medical Research Laboratories) to be formed after his death. Appellant submits that the execution of this 1925 will was further confirmed by the discovery of an original holographic codicil in Hughes’ handwriting, dated June 10, 1939, directing the deletion from the will of the name R.C. Kuldell, a name appearing in the copy found in Andrews’ files. In a letter to Hughes dated April 23, 1929, Mr. Andrews wrote, ‘I do not wish to seem critical of the testamentary revision referred to by Mr. Dempsey. In lieu of the suggestions made by him it occurs to me that everything would be very much simplified by creating at once the trust you desired to carry out.’ Appellant surmises that ‘heeding such advice,’ Hughes created HHMI twenty-four years later in 1953, and that in a will allegedly executed sometime between 1953 and 1963, Hughes left HHMI the bulk of his estate. For this contention, appellant relies on the deposition testimony of a former Hughes executive. This executive, John T. Pettit, testifies that in 1963, Mr. Raymond Cook, a partner in the Andrews, Kurth law firm showed him a document which Mr. Cook identified as Hughes’ will. Mr. Pettit testified that to the best of his recollection, he was shown a very thin document. Upon ‘glancing’ at the document, Mr. Pettit's ‘impression’ was that ‘everything was left to HHMI.’ No will bearing Howard Hughes’ signature and the signature of two witnesses was produced in court. HHMI relies on the above evidence and other evidence to be discussed where applicable to establish its claim under either of these two alleged lost wills.

a. Due Execution

“Following appellant's statement of its only point of error complaining of the probate court's granting of a summary judgment, appellant states that ‘Texas law clearly permits the use of secondary evidence of due execution when, despite diligent inquiry, the identity of the attesting witnesses cannot be discovered.’ It argues that Probate Code § 84 is a permissive ‘best evidence’ rule that permits the use of secondary evidence so long as the absence of preferred evidence is ‘accounted for.’ HHMI reasons that because Probate Code § 88(b) provides the substantive requirement that the applicant prove due execution of a will ‘to the satisfaction of the court,’ ‘[S]ections 84 and 85 of the Probate Code are procedural rules as to methods of satisfying Section 88’s substantive requirement....’

“Section 88 of the Probate Code provides first for ‘General Proof’ required whenever an applicant seeks to probate a will. This requirement includes such items as proving that the person is dead, that four years have not elapsed since his demise and that the court has jurisdiction and venue over the estate. Pursuant to Probate Code § 88(a) the applicant must first prove these items ‘to the satisfaction of the court.’ Part (b) of § 88 thereafter provides as follows:

“(b) Additional Proof for Probate of Will. To obtain probate of a will, the applicant must also prove to the satisfaction of the court:

“(1) If the will is not self-proved as provided by this Code, that the testator, at the time of executing the will, was at least eighteen years of age, or was or had been lawfully married, or was a member of the armed forces of the United States, and was of sound mind; and

“(2) If the will is not self-proved as provided by this Code, that the testator executed the will with the formalities and solemnities and under the circumstances required by law to make it a valid will; and

“(3) That such will was not revoked by the testator.

“The words ‘to the satisfaction of the court’ thus do not provide the exclusive requirement of proof for the probate of a will. What must be proved ‘to the satisfaction of the court’ is the specific requirement that the testator executed the will ‘with the formalities and solemnities and under the circumstances required by law to make it a valid will.’ The manner of proving execution with the formalities and solemnities required to make it a valid will is set out in Probate Code § 84 for a will produced in court and in Probate Code § 85 for a will not produced in court. 2[56]

“HHMI asserts that the provisions of Probate Code § 84(b) are permissive and not mandatory because the legislature used the word ‘may’ in setting out the ways in which an attested written will may be proved. Appellant relies on In re Estate of Page, 544 S.W.2d 757 (Tex.Civ.App.--Corpus Christi 1976, writ ref'd n.r.e.) for this proposition.

“In Page, the proponent proved that one of the witnesses to the will was dead and the other ‘could not be located.’ The contestant argued that since the proponent failed to prove that the one who could not be located was dead or in the armed forces, proper execution of the wills was not shown. The court held that the requirements of Probate Code § 84 are not mandatory. However, the court continued:

... before any secondary evidence of the proper formalities of a Will may be offered, the Proponent must first account for the witnesses and offer some reason for their failure to appear and offer primary evidence of the validity of the Will.[57]

“The court stated that since it was conclusively established that one witness was dead and the other could not be located, ‘[I]t was therefore permissible for the Proponent to proceed with secondary evidence as to the validity of the Will.’ In Page, the evidence offered was the testimony of two witnesses who testified to the genuineness of the signatures of the testator and the other witness. This is precisely the kind of secondary evidence that Probate Code § 84(b)(3) requires. Consequently, Page is distinguishable. In the instant case, the secondary evidence on which appellant relies is not of the kind contemplated in Probate Code § 84(b)(3).

“To prove due execution of the alleged 1925 will, appellant relies on a statement in the January 31, 1929 letter by Frank Andrews wherein Mr. Andrews refers to a copy of the ‘will ... executed ... [on] May 30, 1925.’ Assuming that this evidence could be considered probative in proving due execution of a will, the statement is inadmissible as hearsay because it is an out-of-court statement offered to prove the truth of the matter asserted.[58] HHMI submits that the letter is admissible under the ancient documents exception to the hearsay rule. The ancient documents exception applies only to permit evidence of the truth of facts recited in a document, thus excluding opinion or conclusion evidence.[59] In any event, to qualify for admission, recitals in an ancient document must be shown to have been made upon the personal knowledge of the declarant.[60] Appellant has not offered any evidence that Andrews had personal knowledge of a will signing ceremony. Nevertheless, for the letter to provide the necessary proof required by § 84, it would need to be taken as testimony that, pursuant to the provisions of Probate Code § 59, the will was subscribed by two or more credible witnesses above the age of fourteen years in the presence of the testator.[61]

“Appellant's only evidence relevant to this issue is the deposition testimony of Ms. Kate Ebdon, Frank Andrews’ long-time secretary. Appellant, referring to Ms. Ebdon’s testimony, states that ‘it was Andrews’ practice not to retain drafts of wills or the originals of wills, but only to retain copies of executed wills of his clients.’ Ms. Ebdon actually testified that in those instances where she typed a will for Andrews, a carbon copy was placed in the client’s personal file. Where changes were made and a draft of a will was retyped, she did not recall whether she took it out of the file and replaced it with the copy of the newly typed original. Ms. Ebdon further testified that she only typed five or six wills during her tenure with Andrews and that she never typed a will for Hughes. To the best of her recollection, Ms. Ebdon did not type the copy of the alleged 1925 will because the copy of that alleged will shows a different ‘typing set up’ and wording from those of the wills she typed. To infer from Andrews’ conclusion that ‘the will ... executed’ was executed with all the formalities of law would inject speculation and conjecture into an otherwise solemn procedure much protected in law. As the Texas Supreme Court has said, ‘... a vital fact may not be established by piling inference upon inference.’[62] We find that this evidence is insufficient to raise a fact issue that the alleged will was executed with the formalities and solemnities required to make it a valid will. See Mossler v. Johnson, 565 S.W.2d 952 (Tex.Civ.App.--Houston [1st Dist.] 1978, writ ref'd n.r.e.), holding that where the evidence is insufficient to support a finding that the instrument was attested as required by law, the question becomes one of law for the court.

“For proof of due execution of the alleged 1953-1963 will, HHMI relies on the oral testimony of an out-of-court declaration of Raymond Cook, now deceased, that Hughes ‘executed’ his will. This statement would likewise be inadmissible as hearsay.[63] The record further does not contain any evidence that this document was subscribed by two credible witnesses over the age of fourteen in Hughes' presence. We find this evidence insufficient to raise a fact issue to preclude summary judgment on the issue of due execution of the alleged 1953-1963 will.

“Appellant contends further that since a diligent search has been made to determine the identity and whereabouts of the subscribing witnesses, the witnesses have been ‘accounted for.’ It cites numerous decisions which have permitted various forms of secondary evidence where testimony of attesting witnesses could not be obtained. In Massey v. Allen, 248 S.W. 1067 (Tex.Comm'n App.1923, judgment adopted), relied on by appellant, one witness could not remember signing the will but he admitted that the signature on the will was his signature. In Jones v. Whitely, 533 S.W.2d 881 (Tex.Civ.App.--Fort Worth 1976, writ ref'd n.r.e.), also cited by appellant, one witness testified that he did not sign in the presence of the testatrix. However, another person who was allegedly present at the time the will was executed testified to the signature of the testatrix, and the daughter of another witness who had ‘lost his memory’ testified to her father’s signature. The court in Jones allowed such ‘secondary evidence’ to prove that the will was executed with the requisite formalities.

“Still, appellant has not cited to this Court any case or authority where secondary evidence of due execution was permitted on a showing that, because a diligent search to determine the identity of the attesting witnesses was made, their failure to testify has been ‘accounted for.’ In fact, in two cases cited by appellant for the proposition that the testimony is required only ‘if the production of such witnesses is possible,’ probate of the wills was denied because the witnesses’ failure to testify was unexplained or the witnesses were otherwise considered ‘unaccounted for.’[64] In a case relied on by appellees for their contention that due execution of the alleged wills cannot be proved, the Court specifically held that where the identity of the attesting witnesses was unknown, the evidence was insufficient to satisfy Probate Code § 59’s substantive requirement.

“In Stewart v. Long, 394 S.W.2d 25 (Tex.Civ.App.--Dallas 1965, writ ref'd n.r.e.), the testatrix’ attorney produced a copy of what he swore was the original will he prepared. Two witnesses testified to the testatrix’ declarations that the will had been executed and two witnesses testified that they saw the executed will, including the signatures of the subscribing witnesses. Proof was made of a diligent but unsuccessful search to find the original of the alleged will. However, no one could testify as to the identity of either of the attesting witnesses. The court found the evidence insufficient to prove due execution and thus denied probate, holding:

We agree with appellant-proponent that the record in this case is entirely devoid of any evidence (1) as to the age of the alleged attesting witnesses; (2) whether they were credible witnesses within the meaning of the Probate Code; and (3) whether they executed the same in the presence of the testatrix, and at her request.”[65]

“We agree with the above decision and hold likewise in the instant case.

“Appellant asserts two final reasons why the probate court erred in ruling as a matter of law that the alleged 1925 will was not executed with the formalities and solemnities of law. First, HHMI claims that appellee Neff has twice admitted in open court that the 1925 will copy is a copy of the will Hughes executed leaving his estate to the Howard Hughes Medical Research Laboratories. The alleged judicial admission was made by an attorney of Neff in an unrelated proceeding in Nevada. In the recent case of Thomas v. St. Joseph Hospital, 618 S.W.2d 791 (Tex.Civ.App.--Houston [1st Dist.] 1981, no writ), the Court of Appeals held as follows:

“A judicial admission is a deliberate, clear, and unequivocal formal act made by a party, which if true and not modified or explained by him, would defeat his right of recovery or defense; the principle should be applied with caution.[66] Statements made by a party or his attorney in the course of judicial proceedings which are not based on personal knowledge or are made by mistake or based upon a mistaken belief of the facts are not considered judicial admissions.[67]

“Furthermore, for a statement to be admissible as an exception to the hearsay rule, it must be made as a declaration of fact, as distinguished from a mere conclusion or opinion.[68] The attorney who made this alleged judicial admission has subsequently explained, under oath, that his statements were made without personal knowledge and on the basis of the mistaken assumption that certain evidence would support the legal conclusion that the alleged 1925 will had been executed. Further, the attorney was not yet born when the will was allegedly executed in 1925. Appellant's contention is thus without merit.

“Second, appellant contends that the attesting witnesses to the 1925 will have been accounted for because, ‘after thirty years, they are presumed dead.’ For this proposition, HHMI cites the case of Harris v. Hoskins, 2 Tex.Civ.App. 486, 22 S.W. 251 (1893, no writ). Harris is distinguishable because the document subscribed by two witnesses was a deed and not a will. Harris is thus not controlling. Nevertheless, we know of no case wherein a court has held that the attesting witnesses to a will are presumed dead after the lapse of the thirty years. If such a presumption did exist, it would necessarily be rebuttable so as to allow the opposing party to prove the contrary. See Tex.Rev.Civ.Stat. art. 5541 providing for a presumption of death as to any person absenting himself for seven (7) years, ‘unless proof be made that he was alive within that time.’ In the instant case such a presumption would be inapplicable since the attesting witnesses to either of the alleged wills have not been identified.

“In this case, appellant is faced with two obstacles it must overcome. First, because the identity of the attesting witnesses is unknown, the proponent has a very difficult burden to meet in proving due execution. Second, because the alleged wills are lost, the question of the manner of proof of due execution is controlled not by a permissive § 84 ‘best evidence’ rule as urged by appellant but by Probate Code § 85. That section, as enacted in 1956, unlike its predecessor and Probate Code § 84, provides that a written will which cannot be produced in court ‘shall be proved in the same manner as provided in the preceding Section ....’ The Court of Appeals in In re Estate of Simms, 442 S.W.2d 426 (Tex.Civ.App.--Texarkana 1969, writ ref'd n.r.e.), specifically held that Probate Code § 85 is mandatory.[69] We agree and hold likewise. Accordingly, HHMI must prove due execution of either of the two alleged wills in a manner as provided in Probate Code § 84.

“Probate Code § 84(b)(3) deals specifically with the matter of diligent searches. The statute provides in part:

“... or, if it be shown under oath to the satisfaction of the court that, diligent search having been made, only one witness can be found who can make the required proof, then by the sworn testimony or affidavit of such one taken in open court, ... to such signatures or handwriting.

“The record does not contain any evidence that appellant has located any person who can testify to either the signature or handwriting of the testator or the signature or handwriting of either of the two attesting witnesses. Therefore, we find that the trial court did not err in holding as a matter of law that no fact issue existed regarding due execution of either of the two alleged wills.[70]

b. Contents by Live Witness

“Probate Code § 85 provides that the contents of a lost will ‘be substantially proved by the testimony of a credible witness who has read it or heard it read.’[71]

“To prove the contents of the alleged 1953-1963 will, appellant relies on the deposition testimony of John Pettit. The witness testified that upon ‘glancing’ at the document which Mr. Cook identified as Hughes’ will, the witness’ ‘impression’ was that everything was left to HHMI. It is clear that Mr. Pettit did not read a will or have it read to him. In fact, Mr. Pettit did not testify that what he saw was the actual will as opposed to a photocopy or a carbon copy. It is unclear whether he remembers seeing Hughes’ signature on the document and he cannot remember whether it was signed by any attesting witnesses. This testimony falls short of the requirement in Probate Code § 85 for ‘substantial’ proof of the contents of a lost will.[72] Accordingly, the trial court correctly found that no genuine issue of material fact exists as to the contents of the 1953-1963 will.

“Appellant states that as to the alleged 1925 will, there is ‘abundant evidence’ that the copy of the will found in Frank Andrews’ files is a copy of the will Hughes allegedly executed in 1925. HHMI argues, citing Miller v. Miller, 285 S.W.2d 373 (Tex.Civ.App.--Eastland 1955, no writ), that the evidence it would offer concerning the copy raises a jury issue as to whether the copy is in fact a copy of the alleged 1925 will. Appellant then contends that if such a determination were made by a jury, proof of the will’s contents in the manner provided in Probate Code § 85 would have ‘no logical application.’ For this contention appellant relies on the California case of In re Moramarco's Estate, 86 Cal.App.2d 326, 194 P.2d 740 (1948).

“In Miller, the Court of Appeals in Eastland held that carbon copies of two alleged lost wills should have been admitted into evidence so as to bear upon the contents and due execution of the wills. However, in Miller, both attesting witnesses to the wills testified to witnessing the will and other persons testified that the copies were exact copies of the originals.

“In In re Moramarco's Estate, a subscribing witness identified an instrument as an exact copy of a will that otherwise had been executed and attested. The Court merely said that, under the California statute, the contents of the will had been proved by that witness by her testimony that the copy was in fact a copy of the original she had witnessed. The Texas statute differs. It specifically requires proof that the witness read the will or heard it read. Moreover, the California Court of Appeals has questioned the decision. In In Re Ruben's Estate, 224 Cal.App.2d 600, 36 Cal.Rptr. 752, (1964), the Court of Appeals stated:

“"... we have considerable doubt that the holding in Moramarco can be reconciled with the clear mandate of the statute...."

“Assuming, arguendo, that a true copy would be sufficient to prove contents, proof of due execution is still required. See Sparkman v. Massey's Estate, 297 S.W.2d 308 (Tex.Civ.App.--Dallas 1956, writ ref'd n.r.e.), wherein the court held that an application to probate an unexecuted carbon copy of a will would be tried as a case involving a lost will. Miller and In re Moramarco's Estate are thus distinguishable since in both cases, the witnesses could testify that the wills were executed with the formalities and solemnities required by law. In the instant case, the evidence of due execution is insufficient. Consequently, we need not decide whether a jury determination that a copy is in fact a copy of the actual will is sufficient to prove contents as required by Probate Code § 85.

“Appellant would still assert, however, that even if the above determination were not found to be sufficient, Andrews’ statements in the January and April, 1929 letters ‘constitute testimony from a credible witness who has seen the will and heard it read.’ We disagree. Andrews’ statements are not testimony and the letters do not provide the ‘substantial’ proof required by § 85 to prove contents of the alleged 1925 will. The trial court properly concluded that as a matter of law, no genuine issue of material fact exists as to the contents of the alleged 1925 will.

STANDING/CY PRES

“Texas Probate Code § 76 provides that an executor named in a will or any interested person may make application to probate a will. An interested person is an entity with some ‘legally ascertained pecuniary interest, real or prospective, absolute or contingent, which will be impaired or benefited, or in some manner materially affected, by the probate of a will.’[73] Mere allegations of the existence of a prior lost will are not sufficient to show this legally ascertained pecuniary interest.[74] While it is not necessary for the proponent to establish facts to entitle the will to probate, the proponent must show that ‘he was named as a beneficiary in a testamentary instrument executed with the formalities required by law, that is, a will.’[75]

“The record in the instant case establishes that there is no genuine issue of material fact regarding due execution of either of the alleged wills. Furthermore, appellant has no standing to probate the alleged 1925 will since the devise in that will specifically provides for the creation of a corporation in Harris County, Texas to conduct ‘a LABORATORY devoted to the discovery and development of ways, means, antitoxins, and specifics for the prevention and curing of the most serious diseases with which [this section] of this country may from time to time be afflicted, and shall be devoted to the search for and development of the highest scientific methods for the prevention and treatment of diseases.’ Because HHMI is a Florida charitable trust with different purposes, programs and trustees, appellant can claim no ‘interest’ within the meaning of Probate Code § 76 under the provisions of the alleged 1925 will.

“Further, HHMI contends that if the alleged 1953-1963 will is not established, it is the intended or cy pres beneficiary of the alleged 1925 will. Appellant would urge that it has a special interest in the performance of the trust different from that of the general public so as to establish its standing to proceed. This interest is based on HHMI’s belief that it can best carry out Hughes’ alleged charitable intent. Appellant cites no authority nor does it argue its case under this legal theory. We find appellant's contention is without merit.

“The Texas Supreme Court has held that only the trustee of a charitable trust or the Attorney General may initiate a cy pres action.[76] Third parties may intervene on the cy pres issue only if the named parties do not object.[77]

“The application of the cy pres doctrine is limited to situations where a testator's specific charitable purpose or the specific manner of disposition, ‘becomes impossible or impracticable or illegal to carry out....’[78] In the instant case, no legal or practical impediment exists to forming a medical research corporation in Harris County, Texas of the kind described in the alleged 1925 will. Consequently, the situation before us does not necessitate the application of the doctrine of cy pres.

“We likewise find that appellant does not have a special interest in the trust so as to establish its standing to become a substitute beneficiary. HHMI, as a stranger to the alleged 1925 will, has no special interest in the charitable trust distinct from that of the general public.[79] We hold that the trial court did not err in finding there is no genuine issue of material fact that HHMI has no standing to probate either of the alleged wills.

FULL FAITH and CREDIT

“It is asserted by appellees Neff, McIntyre and Bond that because HHMI litigated the identical issues now before this Court in the Nevada courts, the Nevada court’s judgment denying the alleged lost wills to probate should be given full faith and credit by the courts of this State. The pivotal question surrounding the effect of a judgment denying or admitting a will to probate concerns the domicile of the deceased.[80] The United States Supreme Court has recently granted the State of California's motion for leave to file a complaint under the Supreme Court’s original jurisdiction. The complaint asks the Court to finally decide where Hughes was domiciled at the time of his death.[81] In light of this development and because of our holding with respect to the issues of the alleged lost wills and standing, we decline to decide whether the Nevada judgment is entitled to full faith and credit.

“Appellant's sole point of error is overruled and the judgment of the trial court is affirmed.

* * * * *

Does the Dead Man’s Statute[82] apply to probate of the dead man’s will?[83]

Adams is a Texas Supreme Court opinion. The Dead Man’s Statute is discussed in prior cases. Beware of those earlier cases. Do not rely on them without considering Adams.

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

“The question here is whether proffered testimony in support of the probate of an alleged lost will was properly excluded by the trial court pursuant to . . . the Dead Man's Statute.

“George H. Adams died in 1973 and a will executed by him on July 31, 1968 was admitted to probate. A brother, Julius O. Adams, was the named beneficiary; and an attorney, Robert F. Salter, was named independent executor. Sometime later, this suit was filed by Miss Victoria V. Barry, Respondent, to set aside the earlier probate of the 1968 will, and to admit to probate an alleged lost will of Adams claimed to have been dated January 29, 1972, and to have named Miss Barry as sole beneficiary. The only evidentiary support for the alleged lost will was the testimony of Miss Barry. This was excluded by the trial court and an instructed verdict was rendered against Miss Barry. The Court of Civil Appeals reversed and remanded upon the holding that the testimony in question did not involve a transaction with the deceased and hence was not violative of Article 3716. 551 S.W.2d 792. We reverse this judgment and affirm that of the trial court.”

“Article 3716 provides as follows:

In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.

“Although often criticized, this statute remains a viable part of the law of evidence in Texas and in other jurisdictions.[84] The statute is a legislative exception to the general rule that parties to a lawsuit are competent to testify,[85] and as such it is strictly construed.[86] The statute has limited application and by its terms operates to exclude the testimony of a party in a suit by or against executors, administrators, or guardians which relates to a transaction with or statement by the decedent.[87] The statute is a rule insuring fairness between the litigants.[88] Its purpose is to exclude the testimony of a living party pertaining to a transaction with or statement by the deceased whose death precludes rebuttal.[89] The rule does not prohibit a party from testifying to facts from personal knowledge arising otherwise than from a transaction with or statement by the decedent.[90]

“A portion of the testimony of Miss Barry in her bill of exceptions was as follows:

Q Miss Barry, did you see did you see a will signed by George Adams?

A Yes, sir.

Q What was the date of that will that was signed by George Adams?

A January the 29th of 1972.

Q Did you read the will?

A Yes, sir.

Q And, what were the terms of the will?

A He said that I was to be the sole beneficiary of his estate as I had done likewise with mine.

Q Was the will witnessed?

A Yes, sir.

Q Who was it witnessed by?

A It was witnessed by Mr. Edwin Powell who was the attorney in with Mr. Salter at the time and Mrs. Penny who is Mr. Salter's secretary.

Q Were all of these people in the room when it was signed?

A Yes, sir.

Mr. Wash: Your Honor, we offer that.

“It was established by questions directed to Miss Barry by the trial judge that she was testifying with respect to an occasion when she and the deceased Adams allegedly executed separate wills in which each was the named beneficiary of the other. In answer to other questions by the court, Miss Barry stated that she and George Adams went to Salter's office and were handed their respective wills in the presence of Mrs. Penny and Mr. Powell; that they each read their own will and then exchanged them and each read the will of the other; that she then signed her will and it was witnessed; and that Mr. Adams then executed his will. Mr. Powell and Mrs. Penny testified at the trial. Mr. Powell stated that he did witness a will for Miss Barry on the occasion in question but that he did not recall ever witnessing a will by George Adams. Mrs. Penny testified that on the occasion in question Mr. Salter dictated Miss Barry's will, which she then typed and which was then executed. Mrs. Penny stated unequivocally that she did not prepare a will for George Adams and, further, that she had not, at any time, witnessed a will by George Adams.

“Counsel for Miss Barry candidly states that there was a transaction with the deceased ‘behind what she says,’ but contends there was no transaction with the deceased within the provisions of Article 3716 in her testimony that she saw the will, that it was signed by Adams, and that it contained provisions naming her as sole beneficiary. We disagree.

“Particularly pertinent in the context of the facts shown here is the observation of the court in Holland v. Nimitz, supra. There, in speaking of the object of the statute, the court said that death having sealed the lips of one of the parties, the law, for reasons founded upon public policy, seals the lips of the other. See also Martin v. McAdams, supra. It is apparent that in her testimony quoted above Miss Barry was not testifying to facts within her independent knowledge disassociated from the acts of the deceased, George Adams. The term ‘transaction’ involves a mutuality or concert of action,[91] and whatever knowledge Miss Barry possessed with respect to the alleged lost will of George Adams was inseparably connected with the transaction between them[92] in which it was ruled that the viewing by the husband of a will ‘laid there on the bed (by the wife) to show me what was going on’ was a part of a transaction with the wife.

“As noted earlier, apart from the testimony of Miss Barry, which we hold is within the proscription of Article 3716, there is no proof of the alleged lost will of George Adams that she seeks to probate.[93]

“Accordingly, the judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.”

* * * * *

Proof of execution and the Dead Man’s Rule. Stewart was decided prior to the Texas Supreme Court opinion in Adams. Various cases in this cluster of courses discuss the Dead Man’s Rule. They are interesting and provide insight into the issues that arise. Be aware that they may not state the law as currently accepted.

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

“This is a will contest. Patricia Maxwell Stewart, hereinafter referred to as proponent, filed a will of Alta Long, hereinafter called decedent, for probate in the Probate Court of Dallas County, Texas. Charles Everett Long, hereinafter referred to as contestant, resisted the offer of probate, contending that a later will had been executed by the decedent. The judge of the Probate Court admitted the will of decedent to probate. Contestant perfected his appeal to the District Court of Dallas County, Texas where the same issues were joined as in the Probate Court. The case was tried before a jury and, based upon the answers of the jury to special issues submitted, the trial court rendered a judgment denying the will offered by proponent to probate. Appellant-proponent has appealed from such judgment and her points are of such a nature that require a summarization of the essential facts.

“FACTS

“Alta Long died in Dallas County, Texas on February 17, 1963. On June 19, 1963 Patricia Maxwell Stewart filed for probate in the Probate Court of Dallas County an instrument dated July 22, 1959 executed by decedent and duly witnessed and made selfproving pursuant to the provisions of Section 59 of the Probate Code of Texas. By the terms thereof decedent left all of her property to her niece, the proponent herein. Charles Everett Long, decedent's husband, contested the application for the probate of this will, contending that decedent had revoked said will by a later instrument. This contest was denied by the Probate Court and appeal was taken to the District Court for a trial de novo of the same issues.

“In the District Court proponent introduced the will of July 22, 1959 together with the testimony of one of the witnesses thereto, Mrs. Steen, who said that she had witnessed the will and that as far as she knew such will had never been revoked. Proponent produced no further testimony and rested her case.

“Contestant produced the witness Bruce Graham, an attorney, of Greenville, Texas, who testified that he had drafted the will dated July 22, 1959, and had witnessed the execution of the same with the formality as required by the Probate Code, and as far as he knew that will had never been revoked. Mr. Graham said that on April 18, 1961 he came to Dallas from Greenville where he interviewed Mrs. Long, at her request, and was asked by her to prepare another will. He stated that Mrs. Long had expressed concern to him concerning the way her niece, the proponent, had wasted the estate she had received from her father and that she, Mrs. Long, no longer wanted her to be the beneficiary under her will. After consultation with her for some time Mr. Graham said that Mrs. Long expressed the desire to think the matter over and told him that she would contact him later concerning the terms of the proposed new will. He said that a few days later Mrs. Long and her husband came to Greenville from Dallas and that she then requested that he draft a new will in accordance with the terms discussed earlier in Dallas. He said that he then drafted the will according to Mrs. Long's desires and mailed to her the original, retaining a carbon copy for his files. He identified Contestant's Exhibit C-1 as a copy of the instrument which he had retained for his files and being an exact copy of the instrument that he had drafted and sent to Mrs. Long. Contestant's Exhibit C-1 appears to be a form of a will which provides that contestant is to be the independent executor of the decedent's estate; that contestant is given a life estate in the homestead in Dallas, Texas; that the residue of testatrix's estate is to be conveyed in trust for three children of proponent, said trust to be used for the education of the children named. Mr. Graham related that when he mailed the original of Contestant's Exhibit C-1 to Mrs. Long he suggested to her that she execute the same at a title company or other place in her neighborhood. He said that he forwarded a bill for services for preparing this will to Mrs. Long which was subsequently paid.[94] He further testified that as far as he knew this instrument which he had prepared was never executed by Mrs. Long.

“Contestant produced Mrs. Jane Reuter, a friend of decedent, who testified that a few days before Mrs. Long's death she had talked to her at Lake Whitney and in this conversation Mrs. Long had stated that she did not want her niece, Patricia Stewart, to benefit from her estate and that she wanted it to pass to her husband and grandchildren. She expressed some worry and concern to Mrs. Reuter whereupon Mrs. Reuter suggested that she ought to make a will which expressed her desires. Thereupon Mrs. Long said that: 'It had already been attended to.'

“Elizabeth Jean Pace, decedent's stepdaughter, testified that on April 28, 1961 she borrowed decedent's automobile and Mrs. Long had called her that afternoon for the return of her car because, in Mrs. Long's words, 'She had to go and have her will signed,' and she had to be there at four p.m. Mrs. Pace testified that when she delivered the car to Mrs. Long she saw that she had an envelope. She did not see the contents of the envelope but said that Mrs. Long had told her that she had her will, that she had to go and get it signed. The witness testified that in November or December of 1961 she saw the original of Contestant's Exhibit C-1 and at that time she recognized Alta Long's signature as signed to the will at the places marked 'Testatrix', She also testified that she saw that the blanks for the witnesses were signed and that the notary had signed and put a notarial seal on the instrument. She did not recall the names of the witnesses nor the notary public. She denied that she had ever seen the original of C-1 at any other time.

“Contestant testified that he first saw the original of C-1 on April 27, 1961 and at that time there were no signatures on the instrument. He testified, over objection that such testimony invaded the rule of Art. 3716, Civ.St. (Dead Man's Statute), that he next saw the instrument on April 28, 1961; that on that occasion he looked at the instrument and all the blanks were signed, including witnesses and a notary public. He saw decedent's name signed to the original of C-1. He does not recall the names of either of the witnesses nor the notary public. He saw this instrument once or twice subsequent to that occasion, same being in an envelope in the cedar chest. The last time he saw Exhibit C-1 was on January 1, 1963 but has not seen it since. He testified to making efforts to locate the original of Exhibit C-1 by advertising in both daily papers and also sending out printed circulars to various friends and people.

“The original of Contestant's Exhibit C-1 was never produced in court and no further testimony introduced to identify the witnesses or the notary public who allegedly had signed the original of said instrument.

“Contestant closed its case with the above testimony and proponent offered no further testimony.

“The court submitted two special issues, as follows:

'SPECIAL ISSUE NO. 1: Do you find from a preponderance of the evidence that at any time after April 26, 1961, and before her death, Mrs. Alta Long signed, as testatrix, the original instrument of which “Exhibit C-1 is a copy?'

To which the jury answered 'Yes'.

'SPECIAL ISSUE NO. 2: Do you find from a preponderance of the evidence that after Mrs. Alta Long signed the original instrument, of which Exhibit C-u is a copy, if you have heretofore found she did so, such instrument was signed, in the presence of Mrs. Alta Long, by two credible witnesses above the age of fourteen years?'

To which the jury answered 'Yes'.

“OPINION

“By her first nine points of error, grouped together, appellant-proponent challenges the judgment denying decedent's will for probate for the reason that there was no evidence, or insufficient evidence, to support the jury verdict, and the judgment of the court. By these points appellant-proponent contends that the will offered by her was shown to have been executed and entitled to probate unless the evidence demonstrates that such will had been revoked by a subsequent instrument executed with the same formalities as the first will. Sec. 63, Probate Code. Appellant-proponent argues that since the subsequent instrument relied upon by appellee-contestant was nothing more than an unexecuted typewritten copy of a purported will, and since there was no evidence, or insufficient evidence, to demonstrate the proper execution of said subsequent will, there is no basis for denying the probate of the will tendered. Appellee-contestant contends that while it is true he was unable to produce the original of the alleged subsequent will yet the jury was justified in answering the special issues submitted based upon 'evidence legally deducible from the facts established.' Appellee-contestant relies upon such cases as Miller v. Miller, Tex.Civ.App., 285 S.W.2d 373; Tynan v. Paschal, 27 Tex. 286; Massey v. Allen, Tex.Com.App., 248 S.W. 1067, and other cases, to support his contention. We find no quarrel with the rule of law relied upon by appellee-contestant in the above recited cases, but we are unable to agree with him that there is any evidence of probative force to justify the answer of the jury to Special Issue No. 2 relating to the attesting witnesses. We agree with appellant-proponent that the record in this case is entirely devoid of any evidence (1) as to the age of the alleged attesting witnesses; (2) whether they were credible witnesses within the meaning of the Probate Code; and (3) whether they executed the same in the presence of the testatrix, and at her request. We sustain appellant-proponent's Points 2, 4, and 5 relating to 'no evidence' and 'insufficient evidence' as to Special Issue No. 2.

“By her tenth point of error, appellant proponent complains of the action of the trial court in admitting in evidence the testimony of contestant that he had seen the name and signature of the decedent upon the purported will marked Exhibit C-1 in that such testimony violated Art. 3716, commonly known as the Dead Man's Statute. The facts surrounding contestant's testimony relating to his viewing Exhibit C-1 are found in his testimony, as follows:

'The Court interrogated the Contestant as follows:

'* * * Now, before I rule on this question, I'll ask the witness: You say you saw the original of Exhibit C-1 in your bedroom?

'THE WITNESS: I did.

'THE COURT: Was Alta Long present at the time?

'THE WITNESS: Not necessarily. She went in the kitchen to fix dinner.

'THE COURT: Was she in the room at any time about which your counsel has questioned you, in your presence?

'THE WITNESS: It all depends on for what purpose you're asking your question. Sure she was in the room at times, but it wasn't purposely done on this will. That will was laid there on the bed to show me what was going on.

'THE COURT: All right. All right. Just a minute. You say that the original of Exhibit C-1 was spread out on the bed?

'THE WITNESS: No, it was in the envelope it came in. I picked it up.

'THE COURT; Did you put it on the bed?

'THE WITNESS: No, sir.

'THE COURT: How did you come into possession of it?

'THE WITNESS: I found it on the bed.

'THE COURT: Do you know by whom it had been placed there?

'THE WITNESS: Certainly, I knew. Anybody would understand that.'

“Following this testimony he was permitted to say, over objection of appellant-proponent, that he had recognized the decedent's signature on the original of C-1 and that he had seen that it had been signed by witnesses and a notary public, the names of which he did not know.

“We agree with appellant-proponent that the court erred in admitting this testimony, under the circumstances as revealed. Obviously, from contestant's own testimony: 'That will was laid there on the bed to show me what was going on,' we can only conclude that decedent had placed the will on the bed; that she was in and out of the room from time to time; and that his view of the instrument was nothing more than a part of a transaction with his wife.

“As Chief Justice Dixon of this Court said in Munden v. Chambless:[95]

'It has been held that the word transaction as used in the statute includes every method whereby one person can derive impressions or information from the conduct, condition or language of another, including written as well as oral communications. It has been said that the test in whether, in case the witness testified falsely, the deceased, if living could contradict the testimony of his own knowledge.'

“We think the testimony in this case reveals a 'transaction' with the decedent that would prohibit the testimony of contestant.[96]

“Appellee-contestant, by counterpoint contends that since the burden of showing nonrevocation of the will was upon appellant-proponent, and since she failed to request special issues on the question of non-revocation, that such issues must be deemed to have been found by the court in favor of the judgment. We overrule this contention. A review of the entire record in this case leads us to the conclusion that the case should be reversed and remanded for a new trial. This should be done both in the ends of justice and for the reasons assigned by us in sustaining appellant-proponent's points. In addition thereto we believe that the case was submitted upon an erroneous theory concerning the burden of proof on the issue of non-revocation. Since the case will have to be retried we think it apropos to set forth certain rules and standards applicable and which should aid the trial judge in submitting the case to the jury.

“(1) Since this case is one to probate a will in which a contest has been filed the basic inquiry is whether the will sought to be probated is the testatrix's will or whether it is not, and such inquiry embraces the question whether the will offered for probate has been revoked.[97]

“(2) In such a case the burden of proof is upon the proponent of a will to prove that the will offered was not revoked by the testatrix.[98]

“(3) Proponent's burden of proving that the will has not been revoked is discharged and the will is entitled to be probated when its due execution is proved, in the absence of circumstances which cast suspicion on it, or in the absence of evidence of its revocation. 'This is done by a presumption of continuity of status and a prima facie case against a revocation. If the contestant puts in sufficient evidence to rebut the presumption of non-revocation, then the burden of going forward with the evidence shifts back to the proponent of the will, and he must discharge, by a preponderance of the evidence, his burden of proof that the will was not revoked.'[99]

“(4) Texas courts have recognized a distinction between evidence sufficient to raise the issue of the act of revocation and sufficient evidence to show execution of a subsequent revoking will.[100]

“In the event the evidence of contestant is sufficient to overcome the presumption of continuity and to thereby cast upon proponent the burden of going forward with proof to establish the non-revocation of the tendered will, the court should then submit to the jury an issue or issues as to whether the proffered will has been revoked, properly placing the burden of proof upon proponent.[101]

“Reversed and remanded.”

* * * * *

Dead Man’s Statute and Joint Wills

Harris provides a discussion of the evidence required to prove the contents of a lost will along with discussion of the Dead Man’s Statute in the context of a missing Joint Will.

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

“This appeal is from a judgment denying a purported joint will to probate after the probate of the same had been denied in county court and the applicant there had perfected an appeal to the district court. Proponent, L. G. Harris, an appellant herein, sought alone to have the said will admitted to probate in county court but after perfecting his appeal other proponents hereinafter named as appellants intervened and joined him in the district court by adopting his pleadings. Appellants alleged that during the year 1951 C. E. (Charley) Harris and wife, Della Harris, executed a joint, mutual and reciprocal will disposing of their property by providing for a life estate in all of it for the survivor; that after the death of both of them by the terms of the said will they devised to appellant herein, L. G. Harris, a brother of C. E. Harris, all of the lands they owned in Bailey County, Texas, the same being a farm then occupied by L. G. Harris; that subject to the life estate provision they devised to Mrs. E. C. (Ivy) Reeves and Mrs. G. C. (Mabel) Cave, both sisters of C. E. Harris, the sum of $5,000; that subject to the life estate they devised to appellees herein, Shelly O. Turner, Ollie Z. Drake and Scott E. Robbins, all being children by a former marriage of Della Harris, all of the lands they owned in Motley County, Texas; that thereafter C. E. Harris died on August 9, 1952, and a few months later Della Harris died on April 15, 1953; that after the death of C. E. Harris the alleged will was 'inadvertently or accidentally destroyed and cannot now be produced in court.' But appellants herein have sought by application duly made to have the joint will admitted to probate and 'letters testamentary of administration' issued to appellant, L. G. Harris. However, upon the trial appellants, without amending or changing their pleadings, have sought to establish the authenticity and contents of the joint will by oral testimony and are claiming only that part of the property devised by C. E. Harris, deceased, since it is admitted that Della Harris thereafter during her lifetime and after the death of C. E. Harris revoked any and every part of the said joint will that affected her property. Other appellants who intervened as proponents in the district court were nephews and nieces of C. E. Harris, deceased, who had no children of his own and whose parents had previously died. Intervenors are Carl Harris, Jr., Howard Harris and Hazel Harris, children of Carl Harris, Sr., deceased, who was a brother of C. E. Harris, deceased, and Joe Rossen, a child of Sally Rossen, deceased, a sister of C. E. Harris, deceased.

“Appellees, Scott E. Robbins, Ollie Z. Drake, joined by her husband, Allan Drake, and Mrs. Shelly O. Turner, a feme sole, children by a former marriage of Della Harris, deceased, resisted appellants' application to probate the said purported joint will alleging that C. E. Harris and Della Harris never executed any such will as alleged by appellants and that any and all wills executed by them had been revoked by them during the lifetime of both of them. The record reveals that all the parties to the suit agreed by stipulation that the alleged will offered for probate could not be found and therefore could not be produced in open court.

“The case was tried to a jury and after the evidence closed appellees presented a motion for a peremptory instruction upon the alleged grounds in particular that appellants had failed to discharge the burden of proof cast upon them by offering competent evidence of probative force showing substantially the contents of the alleged lost will so that the same could and would constitute a muniment of title to the property in question and that appellants had also failed to discharge the burden of proof cast upon them to overcome the presumption of law that the said alleged lost will was revoked by C. E. Harris and Della Harris prior to the death of C. E. Harris by presenting clear and satisfactory evidence of probative force to show that such will had not been thus revoked by the makers thereof. The trial court sustained the motion of appellees, so instructed the jury and thereafter rendered judgment accordingly denying the will to probate from which judgment appellants perfected an appeal.

“Appellants contend in effect that there was sufficient evidence to support a judgment admitting the joint will to probate insofar as such was the will of C. E. Harris, deceased. The two material questions here presented, either of which is controlling, are whether or not appellants offered satisfactory evidence to establish the substantial contents of the alleged joint will so that the same could and would constitute a muniment of title to the property in question and whether or not appellants offered clear and convincing evidence[102] to overcome the presumption of law that the makers of the alleged will destroyed and revoked the same. In order to discharge their burden of proof on both questions appellants presented the witness, Hon. Howard Traweek, an attorney at law who drew the alleged will in his office in Matador, Texas, where it was formally executed by C. E. Harris and wife, Della Harris, and duly witnessed in April, 1952, but no copy of the will was kept by anybody. When the witness was asked upon direct examination to testify as best he could remember what constituted the contents of the will, he testified as follows:

'A. I have tried that before in the County Court. I don't recall all of the contents of the will. I do know this that their home place out there, where they lived, was given to--out right to his children--well, first, this--back up on that. That the survivor of them, which ever out lived the other one was to have all of the real estate for his or her life time, and that after the death of the survivor Mrs. Harris' three children, of course, got the home place and I believe what they called the four-corners place, either got all of it or part of it, I am not sure on that. And, the land in Bailey County was to Mr. Harris's brother either out right or to him and some of Mr. Harris' other relatives. There were some nieces and nephews of one of Mr. Harris' deceased brothers, as I recall, that were mentioned in the will, but I can't for the life of me recall what they were supposed to get, they either got part of the land in Bailey County or something else. And, then I believe all of the personal property was to Mrs. Harris' children. And, also a Mrs. Reeves, that I believe is a sister of Mr. Harris, was it Sweetwater?

‘Q. Yeah.

‘A. Somewhere down in there was given a bequest of two thousand dollars.'

Then in question and answer form the witness further testified on direct examination:

‘Q. Now, was she to get that when the first one of them died?

‘A. No, that was after the death of the survivor.

‘Q. In other words, the one that survived was to have the life estate in all of the personal property?

‘A. Yes, that is right.

‘Q. Now, then, did you in the will set out the description of this real estate that each one was--that each person was to get?

‘A. It did set it out. That is what I can't recall, though, who got what of it. Of course, I am positive about the home place, and at least a part of what is called that four-corners place, I am not sure on that.'

Upon cross examination concerning the contents of the will the witness further testified in question and answer form as follows:

‘Q. Now, Mr. Traweek, if I understood your testimony on direct examination by Mr. Fish, you are not very definite and certain about the provisions of the will and the contests of the will, is that correct?

‘A. That is right.

‘Q. Your memory is just not good enough to serve you in that respect?

‘A. Well, it has been a little over four years since I have seen that will.

‘Q. And, you can't tell the jury positively now or with any substantial certainty about the provisions of the will and as to who got the property?

A. On some of it I can't.

‘Q. Particularly with reference to the Bailey County land, you cant's tell the jury whether or not that will gave that land to L. G. Harris or whether or not it gave it to L. G. Harris and some of the children of another deceased brother of Charlie Harris', can you?

A. That is correct.

‘Q. And, you can't tell the jury with any certainty as to whether or not the will gave any of the Motley County land to some of the sisters of C. E. Harris?

‘A. No, I don't remember. I do remember that all of the, what they call the home place went to her children and either all of the four corners place or a part of it went to her children. I am sure as to that.'

Then on redirect examination the witness testified as follows:

‘Q. Howard, now you testified when this case was tried in the County Court?

‘A. That is correct.

‘Q. And, signed a statement as to what your testimony was?

A. Yes.

‘Q. Do you recall that you testified that the land in Bailey County was given to L. G. Harris and that you were rather sure of that?

‘A. I am not sure.

‘Q. Okay. I will read all of it, 'And that land in Bailey County, Texas, was given to L. G. Harris,' he was rather sure, 'but it could be that it was given to L. G. Harris and the children of a deceased brother of C. E. Harris.'

A. I think that is about what I have testified here, Farris, I am not sure. I can't recall what provision was made in regard to those nieces and nephews, I know they were mentioned in the will.'

The two witnesses to the will, Glenn Woodruff and Paul Patton, both testified but neither of them gave any testimony as to the contents of the will since the proof shows that they did not know anything about the contents of the will as it was not read by either of them and was not read in their presence. The foregoing testimony of the witness, Howard Traweek, was all the testimony given concerning the contents of the alleged will and no other evidence was offered in an effort to prove the contents of the alleged will.

Article 3349, provides that:

'If the will be a written will which cannot be produced in court, the cause of its non-production must be proved, and such cause must be sufficient to satisfy the court that it cannot by any reasonable diligence be produced, and the contents of such will must be substantially proved by the testimony of a credible witness who has read it or heard it read.'

“In 57 Amer.Jur. 639-640, Sec. 983, the degree of proof required to establish the contents of a lost or destroyed will in various jurisdictions must be proof 'to a reasonable certainty,' 'very clear and satisfactory,' 'clear and convincing,' 'strong and conclusive,' 'full and satisfactory,' etcetera. While it is not necessary to establish all of the contents of an alleged lost will literally or verbatim, it is necessary to establish its material contents with some degree of certainty in order to be able to pass title to the property devised and such is particularly true of land. The statutory requirements for substantial proof of the contents of an alleged lost will have not been satisfied so long as the court is left in confusion about the real provisions of the will or how to vest title to the property involved.

“Certainly Howard Traweek was a credible witness but it had been so long since he had read the will he did not remember its contents well enough to testify substantially as to its material provisions. The witness did not know whether the Bailey County farm was devised to L. G. Harris, a brother of C. E. Harris, deceased, or devised to L. G. Harris and some of the nieces and nephews of C. E. Harris, deceased, which nieces and nephews were not named by the witness. He did not know whether appellees herein, the children of Della Harris by a former marriage, got all of the 'four-corners place' or only a part of it. The witness testified that he could not remember whether or not the will gave some of the Motley County land to some of the sisters of C. E. Harris, deceased, and that some of the nieces and nephews of C. E. Harris, deceased, were mentioned in the will but 'I can't for the life of me recall what they were supposed to get, they either got a part of the land in Bailey County or something else.' The witness was very uncertain about these material provisions of the alleged will. In any event, we find no evidence substantially proving the contents of the will so as to constitute a muniment of title to the property purportedly devised in the will. The testimony is so uncertain that we do not find any fact issue raised by it. The substance of the testimony of the only witness who testified concerning the contents of the alleged will is that he did not know what the material provisions of the will were. There is no conflict in the evidence as to the contents of the will and in our opinion there is no evidence of probative force to establish the material contents of the will with any degree of certainty. Based upon the evidence presented concerning the contents of the alleged will a jury panel or anybody else could do no more in any event than to conjecture or speculate as to the rights of the parties involved.

“Under the provisions of Sec. 5 of Art. 3348, appellants had the burden of proving to the satisfaction of the court that the will had not been revoked by the makers thereof. The proof showed conclusively that the will was last seen in the possession of the makers thereof when they left the office of Howard Traweek after it was executed. Nobody had seen the will since that time, although a diligent search had been made for it since the makers thereof died. When a will is last seen in possession of the makers thereof a failure to produce it after the death of the makers thereof raises the presumption in law that the makers destroyed the will with the intention of revoking it and the burden rests upon appellants here to prove the contrary by clear and satisfactory proof.[103]

“Appellants' witness, Howard Traweek, testified that C. E. Harris and wife, Della Harris, talked to him before making the will and were rather unsettled about the best disposition to be made of their property; that they talked to him also about how to revoke a will after it was made and he told them a will could be revoked by destroying it, by tearing it up or by burning it or by making a subsequent will; that they did not seem to be very well pleased with the contents of the will they had executed; that during the few months Della Harris lived after her husband, C. E. Harris, died, he prepared for her and she executed another will but she thereafter destroyed it and finally died intestate. Other witnesses testified about conversations they had with Della Harris after the death of C. E. Harris about the property she and C. E. Harris owned and about a will or at least about some will but the proof shows Della Harris had executed two different wills within one year before she died and the conversations do not reveal clearly which will was discussed by the parties.

“Mrs. W. Y. Higgins, an aunt of C. E. Harris, deceased, and appellant, L. G. Harris, gave testimony about general conversations she had with Della Harris before and after the death of C. E. Harris, concerning the property of C. E. Harris and wife, Della Harris, and their will. But she expressed some doubt about whether she could relate the contents of the conversations had and considering her testimony in its most favorable light, we do not feel it has probative force enough to raise an issue on the question of revocation of the alleged joint will. The same may be said about the testimony of Rev. L. W. Baker, the pastor of C. E. Harris and Della Harris during their lifetime, and about the testimony of the witness, Mrs. L. G. Harris, wife of appellant, L. G. Harris.

“The testimony of appellants' witness Traweek lends no support to their contention that the alleged joint will had not been revoked. On the contrary, his testimony lends aid to appellees' contention of presumption of revocation by the makers. Except for Traweek's testimony, all of the evidence offered in an effort to rebut the presumption of revocation consists of statements attributed to Della Harris who did no more than refer to the will and mention the status of the property of herself and C. E. Harris. The record reveals that some of the said property was separate property of Della Harris and that she held control of all of the property in question during the few months she lived after the death of her husband. No statement she made showed the existence of the alleged joint will in question after the death of C. E. Harris. In any event it seems that her declarations alone would be insufficient to establish any material fact sought to be established concerning the alleged lost will but such could serve only to corroborate the main facts sought to be proved.[104]

“The evidence reveals conclusively that Della Harris destroyed and revoked the will she had made subsequent to her husband's death and it must be presumed under the record that she and C. E. Harris had previously revoked the joint will they executed prior to the death of C. E. Harris until the contrary is shown. We find no clear and convincing evidence of any character in the record or any evidence of probative force to overcome such presumption or to raise an issue of revocation.[105]

“Appellants further complain because the trial court, as a result of appellees invoking the provisions of 'The Dead Man's Statute,' Art. 3716, excluded the testimony of appellant, L. G. Harris, concerning a conversation he had with testatrix, Della Harris, deceased, allegedly about the joint will in controversy after the death of C. E. Harris. It must be remembered that appellants sought by their pleadings to have the joint will admitted to probate and to have the witness, L. G. Harris, an alleged beneficiary whose testimony they then tendered, named as administrator of the estate. It is admitted, however, that a joint will may be admitted to probate as the will of either party or as the will of both parties. Appellants' bill of exception reveals that the witness of permitted would have testified on direct examination that during the said conversation Della Harris asked the witness 'if he knew about the will' and he replied 'he did'; that she then stated 'they had left Myrtle (a sister to the witness and C. E. Harris, deceased) out of the will and she thought she would change it because Charley had worried about leaving her out;' that Della Harris then asked him if Myrtle had enough to take care of her to which he answered that 'if that was why she was going to change the will, she needn't do so, because Myrtle had plenty to take care of her.' The witness, as an appellant herein, and the other appellants herein were claiming as beneficiaries under the terms of the alleged lost will offered for probate and appellees were claiming as heirs of Della Harris, deceased. Appellees further contended that if the will be not admitted to probate, they would be entitled to receive all of the property here in controversy as heirs of Della Harris. Under the record before us it is our opinion that the trial court properly held that the witness, L. G. Harris, was not a competent witness to testify about the matters here involved because of the construction the courts have given the provisions of Art. 3716.[106] However, if the testimony in question had been admitted, the language used in the conversation did not reveal which will was being referred to by the parties and there was nothing said to indicate that the joint will here involved had not been revoked by the makers.

“For the reasons stated it is our opinion that appellants' points of error should be overruled. It is so ordered and the judgment of the trial court is affirmed.”

Henderson raises some unique issues that you never thought about as well as a few that might be considered normal. The unique issues are whether a lawyer is over the age of 14, and whether a person who is old enough to execute a will in 1958 was too young to do so in 1959? Yes, really. More routine issues are whether a copy of a copy of a missing will be probate, whether a deceased spouse’s probated will and probate records are evidence, and how the Dead Man’s Statute applies in a joint will context.

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

“This is an appeal from a judgment refusing to probate a will.

“Appellant, Nettie Whitley Henderson, offered the will of her mother, Willie Whitley, dated February 12, 1958, for probate. The probate of such will was opposed by appellee (a granddaughter of deceased), on the ground that the deceased had executed a valid will on September 21, 1959, which later will, expressly revoked the 1958 will offered for probate.

“Trial was to a jury which, in answer to the sole special issue submitted, found that the deceased revoked the 1958 will. Judgment was entered on the verdict denying probate of the 1958 will.

“Appellant appeals, contending that the Trial Court erred in denying probate of the 1958 will for the following reasons:

1) Appellee failed to prove that testatrix was over 19 years of age when the 1959 will was executed, and failed to prove that the witnesses to such will were over 14 years of age.

2) Appellee failed to produce both witnesses to the 1959 will.

3) The Trial Court erred in admitting into evidence a photostat of the carbon copy of the 1959 will, retained by the attorney, who prepared such will.

4) The Trial Court erred in admitting into evidence testatrix' husband's 1959 will, and probate proceedings thereon.

5) Testimony of the attorney who prepared the 1959 will, was inadmissible as violative of the Dead Man's Statute.

“The record reflects that the deceased testatrix, Willie Whitley, and her husband, in 1958, executed a joint will leaving their property to the survivor for life, and upon death of the survivor, to their two children, Nettie and Sybil. (Such will did not leave anything to 3 grandchildren, children of 2 deceased sons).

“On September 21, 1959, Mr. and Mrs. Whitley executed new separate wills, each containing a clause expressly revoking all other wills theretofore made. Mr. Whitley's 1959 will left everything to Mrs. Whitley; and Mrs. Whitley's 1959 will left everything to Mr. Whitley. Mr. Whitley died in August, 1962, and his 1959 will was probated. Mrs. Whitley died in September, 1962, and appellant offered the 1958 will of Mrs. Whitley for probate. Appellee contested on the ground that the 1959 will revoked the 1958 will.

“The record reflects that testatrix was over 19 years of age, as well as the fact that she was married, when she executed the 1959 will; and that the witnesses were over 14 years of age. One of the witnesses was an attorney at law, and before the court during the instant proceeding.

“The 1959 will could not be produced, and the trial court permitted one of the witnesses to it, to testify as to its execution and contents. The Trial Court further admitted into evidence a photostat of the carbon file copy of the will, of the attorney who drew the will. Still another witness testified that she heard testatrix read the 1959 will aloud at the time that she signed it. The Trial Court further permitted the introduction into evidence of Mr. Whitley's 1959 will and the probate proceedings probating such 1959 will.

“Testimony of only one of the witnesses to the 1959 will was sufficient to prove it. The photostat of the attorney's carbon file copy of the absent will, along with his testimony, was admissible as the best available evidence of the absent and missing will. Mr. Whitley's will and probate proceedings of his will, were admissible as a circumstance tending to show revocation of the 1958 will.

“The attorney who prepared the 1959 will, testified as to its preparation, contents, and execution, and identified the photostat of the file carbon copy retained by him of such will. He testified he had no contingent fee contract in the instant case. Such testimony was admissible, and was not violative of the Dead Man's Statute.[107]

“We think the Trial Court properly submitted the sole issue in the case; that the jury's answer to such issue is amply supported by the evidence; and that the judgment is correct.

“All of appellant's points and contentions are overruled and the judgment of the Trial Court is affirmed.”

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[1] All emphasis is by the teacher’s, and original emphasis has been deleted. References to publishers of public domain material, words like supra, and redundant references may be omitted. Citations by the court may be moved to footnotes to enhance readability. Some of the court’s original footnotes are retained with the court’s original footnote number in the main text and in the footnote.

[2] TEX.PROB.CODE § 73(a).

[3] Brown v. Byrd, 512 S.W.2d 753, 755 (Tex.Civ.App.--Tyler 1974, no writ)

[4] Fortinberry v. Fortinberry, 326 S.W.2d 717, 719 (Tex.Civ.App.--Waco 1959, writ ref'd n.r.e.).

[5] Id.

[6] See TEX.PROB.CODE § 88(b)(3).

[7] In re Page's Estate, 544 S.W.2d 757, 761 (Tex.App.--Corpus Christi 1976, writ ref'd n.r.e.).

[8] Turk v. Robles, 810 S.W.2d 755, 759 (Tex.App.--Houston [1st Dist.] 1991, writ ref'd).

[9] In re Page's Estate, 544 S.W.2d at 761.

[10] See TEX.PROB.CODE § 59(a).

[11] See TEX.PROB.CODE § 63. Compare, Turk, 810 S.W.2d at 758 (testimony that testator revoked the will through a subsequent document cast doubt upon the presumption of continuity).

[12] Fuller v. Sechelski, 573 S.W.2d 587, 588 (Tex.Civ.App.--Houston [1st Dist.] 1978, writ ref'd n.r.e.) (probate of a xerox copy of will); Mingo v. Mingo, 507 S.W.2d 310, 311 (Tex.Civ.App.--San Antonio 1974, writ ref'd n.r.e.) (probate of conformed copy of will not signed by decedent or any attesting witnesses); Dodd v. Peoples Nat'l Bank, 377 S.W.2d 760, 761 (Tex.Civ.App.--Texarkana 1964, no writ) (probate of carbon copy of will not signed by decedent or attesting witness); Tinney v. Carpenter, 369 S.W.2d 440, 441 (Tex.Civ.App.--Austin 1963, writ ref'd n.r.e.) (probate of a lost will); Bailey v. Bailey, 171 S.W.2d 162, 163 (Tex.Civ.App.--Amarillo 1943, no writ) (probate of unsigned carbon copy of will).

[13] In re Page's Estate, 544 S.W.2d at 761 (and cases cited therein).

[14] Pearce v. Meek, 780 S.W.2d 289, 294 (Tex.App.--Tyler 1989, no writ).

[15] Pearce, 780 S.W.2d at 294; Lane v. Brown, 312 S.W.2d 735, 739 (Tex.App.--Dallas 1958, writ ref'd n.r.e.).

[16] Pelton v. Dawley, 556 S.W.2d 398 (Tex.Civ.App.--Waco 1977, no writ).

[17] Id. at 400.

[18] Ludwick v. Fowler, 193 S.W.2d 692, 695 (Tex.Civ.App.--Dallas 1946, writ ref'd n.r.e.); Venner v. Layton, 244 S.W.2d 852, 856 (Tex.Civ.App.--Dallas 1951, writ ref'd n.r.e.).

[19] Saros v. Strickland (Tex.Civ.App.), 148 S.W.2d 865, error dism.; Arredondo v. Arredondo (Tex.Civ.App.), 25 S.W. 336, N.W.H.; McLane v. Paschal, 62 Tex. 102; Mills v. Baird (Tex.Civ.App.), 147 S.W.2d 312, error refused.

[20] Was she?

[21] Was this the best claim? Was this the only claim? The bank was named executor and had the Will. It had a duty to produce the Will for probate by the court. Did it have a duty as named executor? It was more that a custodian of a thing. If the bank was a fiduciary, when does the statute of limitations begin to run for a breach of fiduciary duty claim?

[22] 1 Article 5529 was repealed by Acts 1985, 69th Leg., p. 7218, ch. 959, § 9(1), eff. Sept. 1, 1985. It has been replaced by § 16.051 of the new Texas Civil Practice and Remedies Code. That section now reads: "Every action for which there is no express limitations period, except an action for the recovery of real property, must be brought no later than four years after the day the cause of action accrues."

[23] Tex.R.Civ.P. 94. See also Bickler v. Bickler, 391 S.W.2d 106 (Tex.Civ.App.--Austin 1965), aff'd in part, rev'd in part on other grounds, 403 S.W.2d 354 (Tex.1966).

[24] Cook v. Smith, 673 S.W.2d 232 (Tex.App.--Dallas 1984, writ ref'd n.r.e.). See also Whatley v. National Bank of Commerce, 555 S.W.2d 500 (Tex.Civ.App.--Dallas 1977, no writ).

[25] Lout v. Whitehead, 415 S.W.2d 403, 407 (Tex.1967).

[26] Nichols v. Smith, 507 S.W.2d 518 (Tex.1974).

[27] See generally Weaver v. Witt, 561 S.W.2d 792 (Tex.1977) (involving a medical malpractice claim).

[28] See Allright, Inc. v. Strawder, 679 S.W.2d 81 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.); Classified Parking Systems v. Dansereau, 535 S.W.2d 14 (Tex.Civ.App.--Houston [14th Dist.] 1976, no writ).

[29] Filhiol's Succession, 123 La. 497, 49 So. 138; Dodd v. Anderson, 197 N.Y. 466, 90 N.E. 1137, 27 L.R.A. (N.S.) 336, 18 Ann.Cas. 738.

[30] 40 Cyc. 1226.

[31] Aschenbeck v. Aschenbeck, Tex.Civ.App., 1933, 62 S.W.2d 326.

[32] Aschenbeck v. Aschenbeck, supra; Sec. 88(b)(2) Tex.Probate Code; 41 A.L.R.2d 393; 3 A.L.R.2d 949.

[33] Harris v. Robbins, Tex.Civ.App., 1957, 302 S.W.2d 225, N.W.H.; McClusky v. Owens, Tex.Civ.App., 1953, 255 S.W.2d 939, W.R.; Dodd v. Peoples National Bank, Tex.Civ.App., 1964, 377 S.W.2d 760, N.W.H.

[34] Hartford Accident & Indemnity Co., v. McCardell, Tex., 1963, 369 S.W.2d 331; Atkins v. Graves, Tex.Civ.App., 1963, 367 S.W.2d 372, N.R.E.; Martin v. Johnson, Tex.Civ.App.1963, 365 S.W.2d 429, N.W.H.; Gulf, C. & S.F. Ry. v. Johnson, Tex.Civ.App., 1902, 67 S.W. 182; Wigmore, Evidence, Secs. 1361 & 1788.

[35] Agricultural & Mechanical College v . Guinn, Tex.Civ.App., 1959, 326 S.W.2d 609, N.R.E.; 2 McCormick & Ray, Texas Law of Evidence 1, Sec. 1001.

[36] Griffith v. Sauls, 1890, 77 Tex. 630, 14 S.W. 230; Tarwater v. Donley County State Bank, Tex.Civ . App., 1925, 277 S.W. 176, N.W.H.; Wigmore-Evidence, Sec. 1456; 2 McCormick & Ray, Texas Law of Evidence, 2, Sec. 1003.

[37] Champion Paper & Fiber Co. v. Wooding, Tex.Civ.App., 1959, 321 S.W.2d 127, N. R. E.; Singleton v. Carmichael, Tex.Civ.App., 1957, 305 S.W.2d 379; 36 Tex.L.Rev. 517.

[38] Henderson v. Travelers Insurance Company, 544 S.W.2d 649 (Tex.1976).

[39] O'Brien v. Stanzel, 603 S.W.2d 826 (Tex.1980); Mingo v. Mingo, 507 S.W.2d 310 (Tex.Civ.App.--San Antonio 1974, writ ref'd n.r.e.).

[40] Mingo, 507 at 312; Bailey v. Bailey, 171 S.W.2d 162 (Tex.Civ.App.--Amarillo 1943, no writ).

[41] Cable v. Estate of Cable, 480 S.W.2d 820 (Tex.Civ.App.--Fort Worth 1972, no writ); Sparkman v. Estate of Massey, 297 S.W.2d 308 (Tex.Civ.App.--Dallas 1956, writ ref'd n.r.e.).

[42] McClusky v. Owens, 255 S.W.2d 939 (Tex.Civ.App.--Dallas 1953, writ ref'd n.r.e.); see also Davis v. Roach, 138 S.W.2d 268 (Tex.Civ.App.--Austin 1940, writ dism'd, judgment corr.).

[43] 584 S.W.2d 577.

[44] McElroy v. Phink, 97 Tex. 147, 76 S.W. 753, 753 (1903), on motion for rehearing, 77 S.W. 1025 (1904); Mingo v. Mingo, 507 S.W.2d 310, 311 (Tex.Civ.App. San Antonio 1974, writ ref'd n. r. e.); Tinney v. Carpenter, 369 S.W.2d 440, 443 (Tex.Civ.App. Austin 1963, writ ref'd n. r. e.).

[45] Tex.R.Civ.P.

[46] Tex.Laws 1853, ch. 11, sec. 99 at 19; 3 H. Gammel, Laws of Texas 1303 (1898).

[47] Brooks v. O'Connor, 120 Tex. 121, 39 S.W.2d 22 (1931).

[48] Official Court Order, 38 Texas B.J. 823, 825 (October, 1975).

[49] 585 S.W.2d 669, 673 (Tex.1979)

[50] Tex.R.Civ.P.

[51] See also Coker v. Mitchell, 535 S.W.2d 175 (Tex.1976).

[52] See 4 McDonald, Texas Civil Practice § 17.16.2 (1971).

[53] See Howard Hughes Medical Institute v. Gavin, 96 Nev. 905, 621 P.2d 489 (1980).

[54] Howard Hughes Medical Institute v. Lummis, 596 S.W.2d 171 (Tex.Civ.App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.); see also, Tex.Prob.Code § 73 providing for a four year statute of limitations for the probate of a will.

[55] See U.S.Const. art. IV § 1.

[56] 2 Probate Code § 84(b) provides as follows:

(b) Attested Written Will. If not self-proved as provided in this Code, an attested written will produced in court may be proved:

(1) By the sworn testimony or affidavit of one or more of the subscribing witnesses thereto, taken in open court.

(2) If all the witnesses are non-residents of the county, or those who are residents are unable to attend court, by the sworn testimony of any one or more of them by deposition, either written or oral, taken in the same manner and under the same rules as depositions taken in other civil actions; or, if no opposition in writing to such will is filed on or before the date set for hearing thereon, then by the sworn testimony or affidavit of two witnesses taken in open court, or by deposition in the manner provided herein, to the signature or the handwriting evidenced thereby of one or more of the attesting witnesses, or of the testator, if he signed the will; or if it be shown under oath to the satisfaction of the court that, diligent search having been made, only one witness can be found who can make the required proof, then by the sworn testimony or affidavit of such one taken in open court, or by deposition in the manner provided herein, to such signatures or handwriting.

(3) If none of the witnesses is living, or if all of such witnesses are members of the armed forces of the United States of America or of any auxiliary thereof, or of the armed forces reserve of the United States of America or of any auxiliary thereof, or of the Maritime Service, and are beyond the jurisdiction of the court, by two witnesses to the handwriting of one or both of the subscribing witnesses thereto, or of the testator, if signed by him, and such proof may be either by sworn testimony or affidavit taken in open court, or by deposition, either written or oral, taken in the same manner and under the same rules as depositions taken in other civil actions; or if it be shown under oath to the satisfaction of the court that, diligent search having been made, only one witness can be found who can make the required proof, then by the sworn testimony or affidavit of such one taken in open court, or by deposition in the manner provided herein, to such signatures or handwriting.

Probate Code § 85 provides as follows:

§ 85. Proof of Written Will Not Produced in Court

A written will which cannot be produced in court shall be proved in the same manner as provided in the preceding Section for an attested written will or an holographic will, as the case may be, and the same amount and character of testimony shall be required to prove such will as is required to prove a written will produced in court; but, in addition thereto, the cause of its non-production must be proved, and such cause must be sufficient to satisfy the court that it cannot by any reasonable diligence be produced, and the contents of such will must be substantially proved by the testimony of a credible witness who has read it or heard it read.

[57] 544 S.W.2d at 759.

[58] See Hartford Accident & Indemnity Company v. McCardell, 369 S.W.2d 331, 337 (Tex.1963).

[59] 1A R. Ray, Texas Law of Evidence § § 1374, 1375 (Texas Practice 3d ed. 1980).

[60] Sherrill v. Estate of Plumley, 514 S.W.2d 286, 290, 291 (Tex.Civ.App.Houston [1st Dist.] 1974, writ ref'd n.r.e.); 1A R. Ray, Texas Law of Evidence § 1376 (Texas Practice 3d ed. 1980).

[61] See Stewart v. Long, 394 S.W.2d 25 (Tex.Civ.App.Dallas 1965, writ ref'd n.r.e.).

[62] Schlumberger Well Surveying Corp. v. Nortex Oil and Gas Corp., 435 S.W.2d 854, 858 (Tex.1968).

[63] See Hartford Accident Indemnity Co. v. McCormick.

[64] See In re Estate of Simms, 442 S.W.2d 426, (Tex.Civ.App.--Texarkana 1969, writ ref’d n.r.e.), and Aschenbeck v. Aschenbeck, 62 S.W.2d 326 (Tex.Civ.App.--Austin 1933, writ dism’d). See In re Estate of Simms, 442 S.W.2d 426, (Tex.Civ.App.--Texarkana 1969, writ ref’d n.r.e.), and Aschenbeck v. Aschenbeck, 62 S.W.2d 326 (Tex.Civ.App.--Austin 1933, writ dism’d).

[65] 394 S.W.2d at 29.

[66] Esteve Cotton Co. v. Hancock, 539 S.W.2d 145, 157 (Tex.Civ.App.1976, writ ref'd n.r.e.); see also Griffin v. Superior Insurance Co., 161 Tex. 195, 338 S.W.2d 415, 418-19 (1960).

[67] Gevinson v. Manhattan Construction Co. of Oklahoma, 449 S.W.2d 458, 460 (Tex.1969).

[68] Isaacs v. Plains Transport Co., 367 S.W.2d 152 (Tex.1963); Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651 (1952); Porter v. Thalman, 516 S.W.2d 755 (Tex.Civ.App.--San Antonio 1974 affirmed in Thalman v. Martin, 635 S.W.2d 411 (Tex.1982); Odom v. Lacy, 405 S.W.2d 718 (Tex.Civ.App.--Eastland 1966, writ ref'd n.r.e.).

[69] See also Fuller v. Sechelski, 573 S.W.2d 587 (Tex.Civ.App.--Houston [1st Dist.] 1978, writ ref'd n.r.e.).

[70] Mossler v. Johnson, 565 S.W.2d 952 (Tex.Civ.App.--Houston [1st Dist.] 1978, writ ref'd n.r.e.).

[71] See Strasburger v. Compton, 324 S.W.2d 951 (Tex.Civ.App.--Fort Worth 1959, writ ref'd n.r.e.) and Harris v. Robbins, 302 S.W.2d 225 (Tex.Civ.App.--Amarillo 1957, no writ).

[72] See Harris v. Robbins.

[73] Logan v. Thomason, 146 Tex. 37, 202 S.W.2d 212 (1947).

[74] Hamilton v. Gregory, 482 S.W.2d 287 (Tex.Civ.App.Houston [1st Dist.] 1972, no writ).

[75] 482 S.W.2d at 289.

[76] Coffee v. William Marsh Rice University, 403 S.W.2d 340 (Tex.1966).

[77] Coffee.

[78] Moody v. Haas, 493 S.W.2d 555 (Tex.Civ.App. Houston [14th Dist.] 1973, writ ref'd). See also Scott v. Sterrett, 234 S.W.2d 917 (Tex.Civ.App.--Dallas 1950, writ ref'd n.r.e.).

[79] See Coffee, supra, and Lokey v. Texas Methodist Foundation, 479 S.W.2d 260 (Tex.1972).

[80] See generally: Probate Code §§ 95, 100 (a) & (b), 102, 103; Jones v. Jones, 301 S.W.2d 310 (Tex.Civ.App.--Texarkana 1957, writ ref'd n.r.e.).

[81] State of California v. State of Texas, et al, --- U.S. ---, 102 S.Ct. 2335, 72 L.Ed.2d 755 (1982).

[82] The Dead Man’s Rule, if statutory may be called the Dead Man’s Statute. Whether in common law, rule or statute, it is the substance, not the placement of the rule that matters. In this text, it is may be interchangeably referred to as the statute or rule as a general reference to the concept, rather than a technical reference to the placement.

[83] Teacher’s note: Clearly men are not the only people who die. Should the concept be referred to as the dead person’s statute, the dead statute, or the late former person statute? These cases, being cases of a certain age, refer to the deceased as a man.

[84] See II J. Wigmore, Evidence § 578 at 695 (3rd ed. 1940); C. McCormick & R. Ray, Texas Law of Evidence, § 323, et seq. (2d ed. R. Ray & W. Young 1956); Cheek, Testimony As To Transactions With Decedents, 5 Tex.L.Rev. 149 (1927). See also, Andreades v. McMillan, 256 S.W.2d 477, 478-9 (Tex.Civ.App.1953, writ dism'd w. o j.).

[85] Roberts v. Yarboro, 41 Tex. 449 (1874)

[86] Ragsdale v. Ragsdale, 142 Tex. 476, 179 S.W.2d 291 (1944).

[87] See, Walker, The Dead Man's Statute, 27 Tex. B.J. 315 (1964).

[88] Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298 (Tex.Com.App., holding approved) aff'd on other grounds on motion for rehearing, 111 Tex. 419, 239 S.W. 185 (1921).

[89] Holland v. Nimitz, supra, and cf. Martin v. McAdams, 87 Tex. 225, 27 S.W. 255 (1894).

[90] Wideman v. Coleman, 17 S.W.2d 786 (Tex.Com.App.1929); Martin v. McAdams, 87 Tex. 225, 27 S.W. 255 (1894); Roberts v. Roberts, 405 S.W.2d 211 (Tex.Civ.App.1966, writ ref'd n. r. e.).

[91] see Harper v. Johnson, 162 Tex. 117, 345 S.W.2d 277 (1961)

[92] Cf. Wideman v. Coleman, 17 S.W.2d 786 (Tex.Com.App.1929). See also Stewart v. Long, 394 S.W.2d 25 (Tex.Civ.App.1965, writ ref'd n. r. e.)

[93] Cf. International Travelers' Ass'n v. Bettis, 120 Tex. 67, 35 S.W.2d 1040 (1931).

[94] This was a good client.

[95] Cf. International Travelers' Ass'n v. Bettis, 120 Tex. 67, 35 S.W.2d 1040 (1931).

[96] Art. 3716; Leahy v. Timon, 110 Tex. 73, 215 S.W. 951; Perdue v. Perdue, 110 Tex. 209, 217 S.W. 694, 220 S.W. 322; Mitchell v. Deane, Tex.Com.App., 10 S.W.2d 717; Roberts v. Bush, Tex.Civ.App., 352 S.W.2d 337; 19 Tex.Jur.2d § 989, pp. 40-42.

[97] Langehennig v. Hohmann, 139 Tex. 452, 163 S.W.2d 402.

[98] Sec. 88(b) (3), Texas Probate Code.

[99] Usher v. Gwynn, Tex.Civ.App., 375 S.W.2d 564, affirmed Supreme Court, Ashley v. Usher, 384 S.W.2d 696; McElroy v. Phink, 97 Tex. 147, 76 S.W. 753, 77 S.W. 1025; May v. Brown, 144 Tex. 350, 190 S.W.2d 715, 165 A.L.R. 1180; Brachenridge v. Roberts, 114 Tex. 418, 267 S.W. 244, 270 S.W. 1001, 6 Tex.L.Rev. 556.

[100] Brackenridge v. Roberts; May v. Brown; Usher v. Gwynn.

[101] Usher v. Gwynn

[102] Teacher’s note. But, See Glover.

[103] 44 Tex.Jur. 919, Sec. 334; Bailey v. Bailey, Tex.Civ.App., 171 S.W.2d 162 and other authorities there cited.

[104] Miller v. Miller, Tex.Civ.App., 285 S.W.2d 373 and other authorities there cited.

[105] Tynan v. Paschal, 27 Tex. 286; Brackenridge v. Roberts, 114 Tex. 418, 267 S.W. 244, 270 S.W. 1001; Williams v. White, Tex.Civ.App., 105 S.W.2d 1105; May v. Brown, 144 Tex. 350, 190 S.W.2d 715, 165 A.L.R. 1180; Bailey v. Bailey, Tex.Civ.App., 171 S.W.2d 162; Davis v. Roach, Tex.Civ.App., 138 S.W.2d 268; Clover v. Clover, Tex.Civ.App., 224 S.W. 916; 44 Tex.Jur. 919.

[106] Neblett v. Cooper Grocery Co., Tex.Civ.App., 180 S.W. 1162; McCall v. Owens, Tex.Civ.App., 68 S.W.2d 1089; Bowers v. Bowers, Tex.Civ.App., 99 S.W.2d 334; Miller v. Miller.

[107] See: Trantham v. Roper, Tex.Civ.App., 308 S.W.2d 195 n. r. e.; Joyce v. Williams, Tex.Civ.App., 301 S.W.2d 696 n. r. e.