Texas - Probate of Lost Wills (Advanced #1)

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© A. Hawkins 2004

Suitability

This the first of three advanced lost Will courses. It may be taken by any lawyer, but is intended primarly for those who are very serious about the topic. The introductory course should be taken before this course. This course covers topics that frequently appear at the core of the plots in books and movies. The cases are fundamentally interesting and entertaining.

Scope

This course is one of a cluster of courses that cover all[1] reported Texas cases since 1950 on missing and lost Wills as well as Wills that have been altered after execution. The material is divided into five separate courses to make each course a reasonable length. This also allows you to take one course at a time as your schedule permits and gradually become a KnowItAll.

This is a case study course. Cases are kept intact rather being chopped up and quoted or cited issue by issue. Cases typically involve several issues, but 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 a different issue. The court opinions are lightly edited[2] to retain the full flavor and context.

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

The Process

1. Study this text.

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This course is primarily a case study which relies on the words of the courts which are quoted so that you may read them yourself. The teacher has selected quotations, deleted original emphasis, added the authors emphasis, and moved citations to footnotes. Commentary by the teacher is included in the text and in footnotes. Five asterisks ( * * * * * ) identify each new case, If a case doesn’t interest you, just search for * * * * * to find the next one. This also helps if you wish to go back to reread a case.

There are three kinds of footnotes.

1. Footnotes by the court retain the court’s original number. Our footnote is a footnote to that number.

2. Footnotes that move citations to the footnotes are intended to make the material more readable. Our footnote has the court’s citations.

3. Footnotes that contain some of the author’s commentary.

If you read this course online, your browser will probably let you click on a footnote number to go to the footnote and click on the number in the footnote to return to the text. Some browsers will show the footnote if you hold your curser over the footnote number without clicking If you print the text, you may wish to staple the footnotes separately so you may easily refer to them. They are at the end because of technicalities of the internet. This is a Microsoft Word document displayed as a web page. You may copy it into a word processor to print it if you like. If you have any problems, let us know.

Optional Telephone Conference

The teacher is available for an optional personal telephone conference on the substance of this course. If you have a question about the application of the material in this course to a particular case, or would just like to visit about this topic, you may do so. A brief basic phone conference is $20 per course. If you would like to schedule a phone conference, email or call YouKnowItAll.com.

Table of Contents

The table of contents is a separate document because it includes all of the contents of this cluster of courses. You may print it out once and use it for all courses.

Texas - Probate of Lost Wills (Advanced #1)(2002-3)

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The 4 year period of limitations.

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

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

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

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

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

“On February 24, 1977, HHMI filed an entry of appearance in the probate court proceedings claiming that Hughes did execute a last will and testament leaving his entire estate to HHMI. Appellant also gave notice through this entry that it had filed a petition in the district court of Nevada, Clark County, claiming that Hughes had executed such a will and sought an opportunity to discover it or prove its contents as a last will under the laws of Nevada. 1[3]

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

“Appellant contends in its first point of error that a declaratory judgment action cannot be used to determine appellant’s will claim. Under the Texas Probate Code, a definite plan has been provided for the proving and finding of lost wills.[4] Section 85 gives the requirements regarding proof of wills not produced in court. Section 85 states that a lost will shall be proved in the same manner as provided in section 84. Under section 84, due execution of the will must be proved, whether it be an attested written will or a holographic will. An attested written will may be proved by the testimony of at least one attesting witness, or if unavailable, by at least one witness who is familiar with the handwriting of an attesting witness or the testator. A holographic will must be proved by two witnesses who can identify the testator’s handwriting.

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

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

“Since we must reverse, we do not reach any of the other points of error except the disqualification issue which appellant raises. Appellant claims that Andrews, Kurth, Campbell and Jones, the law firm that represents appellee, should be disqualified in this action because its continued representation would result in violations of the canons of professional conduct. 2[5]

“The rule under the "substantially related" test is that an attorney will be disqualified if a substantial relationship can be shown between the subject matter of a former representation by the attorney and a subsequent adverse representation.[6]

“Andrews, Kurth served as counsel for HHMI for more than twenty years and helped in obtaining HHMI’s tax exempt status. Andrews, Kurth also had knowledge of HHMI’s policies and operations. However, the matters now at issue in this appeal concern appellant’s claim of a valid will allegedly leaving Hughes' estate to HHMI. Thus, Andrews, Kurth’s previous work for HHMI does not have a substantial relationship with the matters now pending on appeal. Moreover, some courts have used an equitable approach and have considered other factors, such as the time and expense expended by counsel on behalf of its present client and the prejudice that might result to counsel’s present client if counsel were forced to withdraw.[7] Lummis has retained Andrews, Kurth as her counsel in all of the probate proceedings relating to Hughes' estate in this state and others. She would suffer extreme hardship if Andrews, Kurth were to be forced to withdraw from this case.

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

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

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

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

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

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

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

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

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

“A written will which cannot be produced in court must be proved in the same manner as provided by law for an attested written will produced in court. In addition the proponent of a written will which cannot be produced in court must prove the cause of its non-production and that it cannot by any reasonable diligence be produced.[8]

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

“The trial judge recited in the judgment entered that the proponent, Roy L. Fuller, failed to present the purported will of Rufus L. Sechelski for probate within four years from the date of death as required by Sections 73 and 74 of the Texas Probate Code, but that proponent did make a diligent effort to locate the original will within the statutory period. The parties to this appeal appear to have treated the court’s finding that proponent made a diligent effort to find the original will as a finding that proponent was not in default in failing to present the will for probate within four years. It is more logical to suppose that the finding in question refers to the requirements of Section 85 of the Probate Code that the cause of the non-production of the will must be proved and that such cause must be sufficient to satisfy the court that the will cannot by any reasonable diligence be produced. The trial judge made a finding on the last point. He made no specific fact finding as to the cause of the non-production of the will. The burden of establishing this fact rested on Mr. Fuller.[9]

“There is no testimony concerning the character of a search, if any, that was made for Mr. Sechelski’s will or as to the disposition made of his personal effects after his death. While Mrs. Mercado testified that the last time she saw the will he was twisting it and asking her to get his lawyer, this event appeared to have happened some years before his death. Mr. Sechelski was survived by two brothers and there is no evidence that inquiry was made of either of them. Since the trial court refused to admit the will to probate no presumptions may be indulged to aid the case of the proponent. The trial judge made factual findings that the last time the will was seen it was in the custody and control of decedent and that diligent effort by proponent failed to produce it. He then concluded as a matter of law that the decedent destroyed the will with intent to revoke it.[10]

“The will was filed for probate more than four years after the death of the testator. The trial court made no finding that Roy L. Fuller was not in default in failing to present the same for probate within four years of the date of the testator’s death. The evidence does not establish this fact as a matter of law. Whether a proponent of a will is in default, as that term is used in Section 73 of the Probate Code, is usually a fact question for the determination of the court or jury.[11]

“The evidence does no more than raise a fact issue as to whether Mr. Fuller was in default in failing to present the will for probate. The failure to secure a finding on this issue requires that the judgment of the trial court be affirmed.[12]

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

Affirmed.

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

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

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

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

“Appellant was the principal beneficiary in the first will. There was a conditional bequest to Mrs. Gathings, but she assigned any interest she may have had in the estate to appellant. After directions as to burial, payment of debts, expenses, and taxes, the second will bequeathed to Strasburger, Mrs. Compton, and Raymond C. Gee $5,000[13] each; to Rushing 10 shares of stock in Ellison son Furniture & Carpet Company; $1,500 to Mamie Henderson; and the balance of the estate to Mrs. Dove Alice Mullins, the mother of Mrs. Compton and widow of Mrs. Cole’s deceased brother. Mrs. Mullins died intestate before the trial, leaving Mrs. Compton as her only heir at law.

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

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

'* * * The acts of a court of record are known by its records alone and cannot be established by parol testimony. The court speaks only through its records, and this rule applies in case of a judge. Furthermore, the records of a court cannot be impugned upon matters within its jurisdiction, when offered in evidence, by counter evidence * * *.'[14]

“Moreover, Mrs. Compton was at all times material to this suit a married woman. By the provisions of Article 5535 it appears that the limitation mentioned in Article 5534 did not run against her. And recovery by her inures to the benefit of the other appellees.[15]

“Another point is that the finding that Mrs. Cole executed the second will is so against the overwhelming weight of the evidence that it ought to be set aside. The evidence that she executed the will is clear and unimpeached. Her banker testified that in his opinion Mrs. Cole signed the instrument. Two other handwriting experts testified that they did not think she did. The persons whose names were on the will as attesting witnesses testified that Mrs. Cole signed the instrument, that she declared to them that the paper was her will, that she was of sound mind, and that the will had not been revoked so far as they knew and believed. There was evidence that Mrs. Cole at times evidenced dislike for some of those who are devisees in the last will. But the jury and the trial court heard all the evidence and observed the witnesses; and we do not feel constrained to hold that the opinion of two handwriting experts and the other circumstantial evidence overcome the plain and unequivocal testimony of witnesses who were in a position to know, to such an extent as to show that the jury verdict was manifestly wrong. Unless such appears, the findings bind this court.[16]

“Another point is that the court erred in not submitting an issue as to whether appellees were in default in not offering the second will for probate within four years of the testatrix' death. He excepted to the court’s failure to submit such issue. The uncontradicted evidence is that the will was found by Mrs. Compton among the effects of her deceased mother, about May 20, 1956. Mrs. Cole died May 15, 1952. There was evidence that Mrs. Compton and her husband had heard that a subsequent will had been executed, but we think it was shown that they did not know enough about its execution and contents to probate it as a lost will. One of the attesting witnesses did not read the will, and the other attesting witness said he read the will but could not remember what sums or what property had been left to each person named therein, and did not remember the names of all the beneficiaries. There was no evidence that Rushing ever heard of the will until Mrs. Compton found it. To probate a lost will, it is necessary to establish with some degree of certainty its material contents in order that title to property may pass.[17]

“But even if it was not shown as a matter of law that appellees were not in default, we do not think appellant can complain. The execution of the later will revoked the former one.[18] With the former will revoked, appellant’s interest in the estate ceased. He is not an heir at law of Mrs. Cole, and it seems that he had no right to contest the later will.[19] Stenzel v. Fischer[20] and authorities there cited. Moreover, with the first will revoked, it was to appellant’s interest to have the second will probated, for he was a legatee in that will, and its probate was favorable to him. A party may not complain of errors which do not injuriously affect him.[21] [22]

“It is contended that the court erred in refusing to hold as a matter of law that appellees were barred from any relief because they undertook to probate an alleged lost will of the brother of Mrs. Compton, and failed. It is said that most, if not all, of the property devised by the brother’s will which had been theretofore probated was property which Mrs. Cole had given him, and he willed the same property to Mrs. Cole. But it was his property while he had it, and it was his alleged subsequent will which they tried to probate. That the same property was later devised to appellant by Mrs. Cole has no bearing on the question. The proposition we are urged to sustain is that an unsuccessful attempt to probate one person’s alleged will bars a later attempt to probate another person’s will.[23] It seems to us that such cannot be the law. We are cited to no authority, and have found none, which supports the proposition.. . .”

A Proponent of a Missing Will Must Prove that it Really was a Will.

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A likable party seeking an intuitively natural and just result has an advantage. If the court doesn’t like a party, the party is likely to lose, regardless of the technical merit of the case. An estranged adopted child had trouble convincing an east Texas jury or judge to create intestacy by probating a missing will (which was not intended to benefit the estranged child) for the sole purpose of revoking all prior wills and creating intestacy, contrary to the decedent’s wishes. The social standing and appeal of the witnesses and opponents can also affect the result. Yes, in east Texas in the middle of the 1900's, there are cases in which race and class mattered.

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

“Appellant, Mrs. Helen Dean Wells, was legally adopted by Miss Sarah E. J. Cartmell at the time when Mrs. Wells was about 11 years old, and lived with Miss Cartmell and Miss Cartmell’s then husband, until she was about 13 years old, at which time, for reasons of her own Miss Sarah E. J. Cartmell sent Mrs. Wells back to Mrs. Wells' relatives, and thereafter, for the remaining 31 years of Miss Cartmell’s life, there was no contact between Mrs. Wells and Miss Cartmell save and except on two occasions, (1) a chance encounter in the City of Palestine in a variety store, and (2) a thirty minute visit by Mrs. Wells in the home of Miss Cartmell in June, 1948, preceding Miss Cartmell’s death, which occurred on September 6, 1948.

“In cause No. 5260 on the docket of the County Court of Anderson County, Styled 'In The Estate of Miss Sarah E. J. Cartmell, Deceased', an instrument in writing which had been executed by Miss Cartmell as testatrix on April 9, 1942, was probated by order of September 27, 1948, as the last will and testament of Miss Cartmell. Judge E. V. Swift was named as executor in said will. Shortly before said will was probated Judge Swift as such executor had paid to appellants, Helen Dean Wells and her husband, and to her attorney, the sum of $35,000 and had taken a deed which purported to transfer to the said Swift as such executor all rights which Mrs. Wells might have been entitled to, if any, as the adoptive daughter of Miss Cartmell. In addition, and as a part of the compromise and settlement of the claim of Mrs. Wells to the estate of Miss Cartmell, or any part thereof, Mrs. Helen Dean Wells, joined pro forma by her husband, contested the probate of the will dated April 9, 1942, and an adverse judgment in said contest was rendered against Mrs. Wells and Mrs. Wells, her husband, and her attorney, expressly approved the order dated September 27, 1948, probating the will of April 9, 1942. No appeal was ever had from the judgment rendered so probating said will of April 9, 1942. Thereafter, in the County Court of Anderson County appellant, Mrs. Helen Dean Wells, joined pro forma by her husband, filed an application in cause No. 5352 on the docket of said court wherein and whereby she sought to establish that on August 10, 1948, Miss Sarah E. J. Cartmell had executed an instrument in writing under the formalities required to establish a valid will, which had been lost or destroyed and which revoked that certain instrument which had been executed by Miss Cartmell as testatrix on April 9, 1942, and which had been probated, as aforesaid, by order of the County Court of Anderson County under date of September 27, 1948, in cause numbered on the docket of said County Court, No. 5260, and styled 'In The Estate of Miss Sarah E. J. Cartmell, Deceased', and in said proceeding Mrs. Wells and her husband likewise sought judgment setting aside and canceling all other orders entered in the probate proceeding No. 5260 aforesaid, save and except the order of December 6, 1948, which appointed the Royall National Bank of Palestine as administrator de bonis non. From an adverse judgment rendered against appellants in cause No. 5352 on April 11, 1950, they perfected their appeal to the District Court of Anderson County, 87th Judicial District, and said appeal bears cause No. 1095 on the docket of the District Court aforesaid.

“Appellants brought suit in the 3rd Judicial District Court of Anderson County in cause No. 24,991 against the persons and charitable institutions named as legatees in the aforesaid will of April 9, 1942. Said suit was brought to cancel the aforesaid deed from Mrs. Wells et al. to Judge E. V. Swift, the executor under the 1942 will. Said suit was properly transferred to the 87th Judicial District Court. The allegations in the two different suits presented fundamentally the same issues and for present purposes it is enough to say that said allegations were to the following effect:

“That Mrs. Wells was the sole surviving heir of Miss Cartmell and as such was entitled to inherit the estate left by her (which is variously valued at between $650,000 and $1,000,000), insofar as same was not devised by will, and that Mrs. Wells, her husband, and her attorney were induced to enter the agreed judgment whereby the will of 1942 was probated, and to execute the aforesaid deed to Judge Swift, upon the assurance by Judge Swift that said will was the last will executed by Miss Cartmell.

“That appellant, Mrs. Wells, her husband, and attorney, exercised due diligence but they only learned some 6 months later that Miss Cartmell had executed a will while in the hospital on August 10, 1948, the only known terms of which were that the same voided all of her former wills.

“(At this point it must be stated that Judge Swift died exactly 2 months after the death of Miss Cartmell and that appellee Royall National Bank of Palestine was appointed administrator, de bonis non, with the will of 1942 annexed.)

“By consent of all parties the issues made by the pleadings and the evidence in said two causes were contemporaneously tried and submitted to the jury upon the same set of special issues. A separate judgment was rendered in each of said 2 causes and 2 separate transcripts have been brought up but only a single statement of facts was brought up, which incidentally consists of 4 large volumes. The judgment rendered in the proceeding brought to establish the alleged revoking instrument and which was the subject matter of cause No. 5352 in the County Court of Anderson County and which on appeal was cause No. 1095 in the District Court of Anderson County is the appeal which is numbered No. 12,347 on the docket of this Court. Whereas the suit to cancel the aforesaid deed and which was cause No. 24,991 in the District Court, is appeal No. 12,348 on the docket of this Court.

“We deem it unnecessary at this point to state any further procedures had save and except that adverse judgments were rendered against the appellants upon the answers of the jury to the following special issues:

“In answer to special issue No. 1, the jury found that Miss Sarah E. J. Cartmell did not sign a statement in writing on or about August 10, 1948, at the Palestine Sanitarium, and, conditioned upon said answer being 'Miss Sarah E. J. Cartmell did sign a statement in writing', the jury were instructed to answer special issue No. 2. Conditioned upon the answer to special issue No. 2, the jury were requested to answer special issues Nos. 3, 4, 5, 6, 7 and 8. Since the jury did not answer special issue No. 1 to the effect that 'Miss Sarah E. J. Cartmell did sign a statement in writing', they left unanswered special issues Nos. 2 to 8, inclusive.

“The jury answered special issue No. 9 to the effect that Miss Sarah E. J. Cartmell did not have testamentary capacity, as the term is defined in the charge, on or about August 10, 1948, at the time it was claimed by appellants that she signed a statement in writing at the Palestine Sanitarium. (The basis upon which the appellants sought to set aside their action in compromising their claims was as stated above, that Judge Swift had told appellants in his office that the 1942 will was the last will of Miss Cartmell and that it had not been revoked.)

“In answer to special issue No. 10, the jury answered to the effect that Judge Swift did state, at the time and place alleged, that the 1942 will was the last will of Miss Cartmell, and had not been revoked. Conditioned upon such answer, there was submitted to the jury a special issue asking if the statement so made by Judge Swift was false and untrue, and the jury answered that said statement so made by Judge Swift was not false and untrue.

“Special Issue No. 12 was likewise submitted to the jury conditionally, and the jury found that appellants executed the settlement agreement as well as the deed and accepted the $35,000 settlement, believing and relying upon E. V. Swift’s said statement that 'The 1942 will was the last will of Miss Sarah Cartmell and that it had not been revoked.'

“Conditioned upon such answer to special issue No. 12, the jury were asked special issue No. 13, which they answered that Judge Swift’s said statement was a material inducement to appellants to agree to the judgment probating Miss Cartmell’s 1942 will and to execute the agreement and deed and accept the $35,000.

“In answer to special issue No. 14, the jury found that the appellants had exercised reasonable diligence, etc. The other special issues being conditioned, were, under such contingent instructions, left unanswered by the jury.

“It is provided by R.C.S. art. 8285 that no will in writing, etc. shall be revoked, except by a subsequent will, codicil or declaration in writing 'executed with like formalities * * *.' In order, therefore, to establish that Miss Cartmell had revoked the 1942 will, the burden was on appellants to show at least that she had executed an instrument in writing under the formalities necessary to make a valid will. By force of R.C.S. art. 3330, where a will has been lost or destroyed, so much of the contents of said lost will, so far as they are known, can be established.

“In order to revoke the will of 1942, the appellants had the burden of establishing that Miss Cartmell executed a written instrument under the formalities required to establish a valid will; and they additionally alleged and sought to prove up that said instrument was lost, and that it expressly provided for the revocation of the previous wills. As indicated above, the jury found, in answer to special issue No. 1, that Miss Cartmell 'did not sign a statement in writing' at the Palestine Sanitarium on or about the 10th of August, 1948.

“Appellants produced two witnesses who testified that Miss Cartmell did execute a written will on August 10, 1948, and that they witnesses said will as subscribing witnesses. Had the jury believed the testimony of said witnesses, the appellants would then have had the further burden of proving that Miss Cartmell was of sound mind and disposing memory. It is appellants' contention that the jury’s answer to special issue No. 1 is at least against the great preponderance of the evidence.

“The witnesses produced by appellants, as being the subscribing witnesses to a will executed by Miss Cartmell on or about August 10, 1948, at the hospital, consisted of Miss Kuban, a nurse, and of Herman Hollis, a Negro[24] who had been the servant of Miss Cartmell, and of her brother who predeceased her, for 25 years before her death.

“For present purposes it is sufficient to say that the substance of Miss Kuban’s testimony was:

“That while Miss Cartmell was in the hospital she requested Miss Kuban to phone Hollis to bring her some important papers, that Hollis would know what papers were meant. That Hollis brought the papers on August 10, 1948, the the morning, that 'Miss Sarah took and opened them and asked me if I would mind signing them and I didn’t want to. I hesitate on signing my name for any patient. She said it wouldn’t hurt me and she wouldn’t tell anybody and she would like for me to sign them because she thought so much of me and all that. She said they were for her protection and that they were pertaining to her will; that she had a will made but she hadn’t left anything to her nephew and she would like to leave him something.' That she was talking in the presence of Hollis and wanted both Miss Kuban and Hollis to sign the papers. That after some argument Miss Kuban signed the paper, and that under Miss Kuban’s name, Hollis signed. That she saw Miss Cartmell sign her name, as did Hollis. That he also signed the paper in the presence of Miss Cartmell and Miss Kuban. Miss Kuban further testified that she glanced over Miss Cartmell’s signature, and saw written on the paper 'I want to void my previous will.' That the papers consisted of two sheets, and was hand-written in pen and ink. That Miss Cartmell told Miss Kuban to turn the paper over to Judge Swift. That when Judge Swift returned to Palestine, and came out to the hospital, she brought the paper out and handed it to him in the hall, and that he did not go back into the room; that he did not read the paper when it was handed to him. That he said 'This isn’t any good, she has a recorded will in 1945 and don’t talk to her about the will any more.'

“Miss Kuban further testified that Miss Cartmell told her to phone to Mr. Henry Jordan, a lawyer, to come out to draw a will for Miss Cartmell; that Miss Kuban did so phone Mr. Jordan, but he never came, etc.

“Coming now to Hollis, - he testified that on one of Judge Swift’s visits to Miss Cartmell while she was sick at home in July, 1948, she told him that she wanted some changes in her will, but that Judge Swift told her that was not the right time to make the changes. Later, on Miss Cartnell’s insistence, Judge Swift came again out to Miss Cartmell’s home, and that Hollis heard her tell Judge Swift that she wanted some changes made in her will, and that Judge Swift protested against any changes being made. That Miss Cartmell told Hollis to bring a tablet; that Hollis then brought a large tablet and gave it to Judge Swift; that Hollis went out of the room to work, but he could see in the room; that he saw Judge Swift sitting by the side of the bed in which Miss Cartmell was lying, and that Miss Cartmell was talking and Judge Swift was writing on the tablet. That in response to Judge Swift’s request, Hollis brought him an envelope, and that Judge Swift folded the paper, put it in the envelope, and gave it to Miss Cartmell, who gave it to Hollis, saying 'This is my important papers. I want you to put them in the drawer.'

“Hollis further testified, among other things, that Miss Kuban phoned him that Miss Cartmell wanted him to bring her the important papers she had given him when she was at home, which Hollis testified he did. That he gave them to Miss Cartmell in the presence of Miss Kuban, and that Miss Cartmell opened the papers, which were the papers written by Judge Swift. That Miss Cartmell then said she wanted Hollis and Miss Kuban to witness the papers. That she said 'This is my will and I want you to witness it, and this is to revoke all my previous wills.' That Miss Cartmell signed it, then Miss Kuban signed it, then Hollis signed, - all in the presence of each other.

“Hollis further testified that after Judge Swift had returned from Big Spring (where he had undergone a medical examination by his son, who is a doctor), and on the first visit made to Judge Swift by Hollis after such return, that Judge Swift mentioned the instrument. That Judge Swift told Hollis that it would not stand, that Miss Cartmell was too sick, and that it wasn’t signed by the proper authorities; that he asked Hollis if he, Hollis, had witnessed the instrument, and that he, Hollis, said that he had. That Hollis told Judge Swift who were the witnesses. That as to the instrument which Hollis had signed out at the hospital, that Hollis was not to talk about it at all, not to mention it to any one. That Judge Swift told this to Hollis on several occasions. That most of the occasions were after Miss Cartmell’s death. That Judge Swift never did tell him what he had done with that paper.

“Under the court’s charge, if the jury did not believe the testimony of Miss Kuban and Hollis, it was the duty of the jury to answer special issue No. 1 as they did answer it. Both Miss Kuban and Hollis freely admitted on the trial that they had on various occasions made previous statements to various named persons which were inconsistent with, and contrary to, their testimony given upon the trial relative to the matter inquired about in special issue No. 1. It was within the province of the jury to disbelieve the impeached testimony of the witnesses. Upon such disbelief, the jury properly answered said special issue.

“In answer to special issue No. 11, the jury found that Judge Swift’s statement to Mr. and Mrs. Wells, made on September 14, 1948, that 'the 1942 will was the last will of Miss Sarah E. J. Cartmell', was not false and untrue. Since the jury disbelieved the testimony of Miss Kuban and Hollis, as evidenced by the Jury’s answer to special issue No. 1, they were acting within their province in answering special issue No. 11 as they did. And said answer finds ample support in the evidence.

“The jury answered special issue No. 9, that Miss Cartmell did not have testamentary capacity on or about August 10, 1948. There was much evidence admitted by the court bearing on this issue, given both by medical experts and by nonexpert witnesses. Appellants have reserved objections to the admission of the expert testimony on said issue. The burden was on appellants to establish that Miss Cartmell possessed testamentary capacity at the time they alleged that she executed a will which revoked the 1942 will. If the finding by the jury that no instrument of August 10, 1948, was signed by Miss Cartmell, is binding upon the court, we fail to see that any good purpose would be served in discussing the evidence bearing on special issue No. 9, or discussing appellants' objections to the admissibility thereof. The evidence was to the effect that Miss Cartmell was either 81 or 79[25] at the time of her death. It was undisputed that she was the victim of various serious maladies[26] at the time she was admitted to the hospital on August 6, 1948. Had the jury answered special issue No. 9 to the effect that Miss Cartmell was of testamentary capacity, it would appear that upon motion of appellees, the court would have been compelled to disregard such answer, and to render the judgment which was rendered.

“By force of art. 8285, neither the will of 1942, nor any clause thereof, nor any devise therein, could be revoked, 'except by a subsequent will, codicil or declaration in writing, executed with like formalities * * *.' By force of said statute, one of the elements necessary to the revocation of an existing written will, or of any clause thereof, or of any devise therein, is that the testator shall execute an instrument in writing with the formalities necessary for a valid will. Special issue No. 1 reads: 'Do you find from a preponderance of the evidence that on or about the 10th day of August, A. D. 1948, Miss Sarah E. J. Cartmell signed a statement in writing at the Palestine Sanitarium?'

'Answer: 'Miss Sarah E. J. Cartmell did sign a statement in writing' or 'Miss Sarah E. J. Cartmell did not sign a statement in writing.''

“The jury answered: 'Miss Sarah E. J. Cartmell did not sign a statement in writing.'

'If you have answered Special Issue No. 1, 'Miss Sarah E. J. Cartmell did sign a statement in writing,' and only in that event, then answer:

’special Issue No. 2

'Do you find from a preponderance of the evidence that such statement in writing, if you have found, contained words to the effect that she voided her previous will?'

'Answer: ’said statement in writing did contain words to the effect that she voided her previous will' or ’said statement in writing did not contain words to the effect that she voided her previous will.''

“. . . We have c