Texas Probate of Lost Wills (Advanced #3)

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© A. Hawkins 2004

Suitability

This the second 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.

2. When you finish this text, go to www.YouKnowItAll.com to observe the discussion. There, you may choose to ask questions or make comments, or you may choose to just observe any discussion posted by others.

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4. YouKnowItAll.com provides a certificate of your attendance with the course name, course number, and the CLE credit hours you earned. If you are in the Texas bar, we report your credit to the State Bar of Texas. If you are in another bar and need something else, let us know.

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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.

The Course Text

Texas Probate of Lost Wills. (Advanced #3)

Was there a diligent search?

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Beware. This can be a “gotcha.” Be diligent. Don’t forget the “diligent” element.

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

“This is a lost will case. A.V. White, Jr., died in December 1980 and application was made to admit a will executed in 1959 to probate. The probate court admitted the will to probate and named appellant the executor of the estate. The 1959 will left all of A.V. White, Jr.'s estate to his wife, Carrie White. After A.V. White, Jr.'s death, but before his will was admitted to probate, Carrie White died intestate. In April 1985 Thomas White, A.V. White, Jr.'s brother, filed an application to set aside the order admitting the 1959 will to probate and seeking to admit to probate a lost will alleged to have been written by A.V. White, Jr., after the 1959 will. This lost will provided that A.V. White, Jr.'s property acquired before marriage should go to his brother Tom and the property acquired during marriage should go to his wife Carrie White. The lost holographic will further named Tom White as the executor.

“The contest was tried to a jury and the jury found that: (1) A.V. White, Jr., after the date of his typewritten will dated in 1959, executed a valid handwritten will which he never revoked, (2) the applicant made a diligent effort to locate the holographic will, and (3) Thomas White was not in default in failing to present such holographic will for probate prior to December 19, 1984. Based upon the jury's answers, the trial court entered a judgment admitting the lost holographic will to probate and providing that all real property acquired by A.V. White, Jr. before his marriage be devised to Thomas White, all property acquired after marriage be devised to Carrie White and all community personal property be bequeathed to Carrie White. The court further ordered that appellant continue as administrator.

“Appellant appeals, bringing forth six points of error. We find point of error number four dispositive of this appeal. This point of error alleges the trial court erred in failing to grant a new trial where the evidence was against the findings of the jury. While this is an extremely general point of error, appellant does, in his argument, specifically point out his complaints. We deal only with his complaint that the jury's finding that Tom White made a diligent effort to locate the lost will is against the great weight and preponderance of the evidence.

“TEX.REV.CIV.STAT. sec. 85 (Texas Probate Code), sets out the provisions for probating a lost will. A proponent must show (1) that the will was properly executed (2) proof of the cause of non-production and that the proponent is unable to produce the will by reasonable diligence, and (3) substantial proof of the contents of the will by a credible witness.[3] The proponent presented sufficient proof on elements 1 and 3. Element 2 is where the proof is deficient. . . .

“Appellee's witness, Dan Blanks, was produced to prove elements 1 and 3. As to the location of the will, this witness testified that after he read the will, he put it back into a trunk while in the presence of the deceased and his wife. The next witness, Reginald White, testified to a similar scenario; he read the will and gave it back to the deceased. These witnesses shed no light on the present location of the will.

“The next witness was the notary public who notarized the holographic will. She testified she last saw the will in the possession of the deceased the day it was notarized. The next witness appeared by deposition and was Mrs. Q.Z. Agnew, a niece of Carrie White and one of Carrie White's heirs at law. Mrs. Agnew testified that she had no personal knowledge of A.V. White, Jr.'s handwritten will, but had heard talk of a handwritten will from Freddie Hughes and that Bernice Holiday had found a will. Freddie Hughes then testified and denied telling Q.Z. Agnew about a handwritten will of A.V. White, Jr., but said she had been discussing the will with A.V. White, Sr.

“The next witness was Mrs. Wilma White, the daughter-in-law of Tom White. Wilma White testified she cared for A.V. White, Jr. and his wife in the latter months of their life. She testified she never read the will, but saw it in an envelope in the trunk shortly before A.V. White, Jr.'s death while he was hospitalized. She also testified that Q.Z. Agnew and Carrie White stayed at the White residence while A.V. White, Jr. was hospitalized. When A.V. White, Jr. returned home after his hospitalization, he asked Wilma White to look for the will in the trunk; she did, but could not find it. Wilma White could not shed any further light on the location of the lost will. The next witness was Doc White, a brother of A.V. White, Jr. and Tom White. Doc White testified that A.V. White, Jr. asked him to help him look for some papers. He testified A.V. White, Jr. did not specify a will or relate to him any testamentary desires. Doc White also verified the presence of Q.Z. Agnew and Carrie White in the home during A.V. White, Jr.'s hospitalization. The proponent then rested. Appellant then presented evidence through the deposition of Tom White. The deposition testimony reflected that Tom White had been told of the existence of the handwritten will and it contents. A.V. White, Jr. had asked Tom White to take the will on several occasions. Tom White's testimony is sometimes confusing, if not conflicting. Tom White admits to having taken the envelope into his possession at some point, but did not look into it. Later he states he did look inside the envelope and it had some papers in it. Tom White then went on to admit he had had the envelope in his possession and that he had delivered it to an attorney in Huntsville, Texas.

“Appellee attempted to show, by repeated questions concerning opportunity, that Q.Z. Agnew was somehow involved in the disappearance of the handwritten will of A.V. White. While this is certainly a possibility, such a finding, if that had been an actual finding, would have been against the great weight. One of appellee's own witnesses testified that Bernice Holiday had the will while the proponent admitted he took the envelope to a lawyer in Huntsville. Appellee produced no evidence as to the unavailability of Bernice Holiday or what steps had been taken to question her concerning the lost will. Furthermore, appellee produced no testimony to refute the proponent's own testimony that the envelope had been taken to a lawyer in Huntsville. If that were untrue or if Tom White had been mistaken about that, evidence should have been presented to the jury on that point. We have none in the record before us. We believe the requirement of showing diligence has not been met to the extent sufficient to sustain the jury's finding. . . .

“REVERSED AND REMANDED.

The Letters About the Missing Will

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If a missing Will theory doesn’t work, what do you think of probating the letters written before the Will? That was tried in Sorenson. But, if the letters were followed by a Will which revoked prior Wills, a Will consisting of the prior letters was revoked, wasn’t it?

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

“This is a will contest involving the estate of one Anna T. Sorenson, Deceased, who died on February 2, 1958, in El Paso County, Texas, and was survived by sisters and brothers, nephews and nieces. In April, 1958, the STATE NATIONAL BANK OF EL PASO, Appellee herein, qualified as Administrator of deceased's estate. Thereafter, in July, 1958, Appellant filed an application for the probate of an alleged 'lost will'. Appellees took the position that deceased died intestate. This position was shared by all of the heirs except appellant. In the County Court of El Paso County the Appellant abandoned his effort to prove up the 'lost' will, and then sought to prove as a holographic will the probate of two letters written by deceased to Appellant, such letters having been written in February, 1957. These letters were dated prior to the preparation of the so-called 'lost' will. The letters and the copy of the alleged 'lost' will provided that the entire estate should go to appellant. Appellant, however, abandoned his attempt to prove up the 'lost' will when a witness testified that the signed original of such will had been torn into bits in her presence by the decedent in April of 1957, the decedent stating at that time that it was not what she wanted. Then followed the application for probate of the two letters.

“The contents of the two letters are as follows:

(1) Letter written on stationery of Southwestern General Hospital, addressed to Mr. and Mrs. John Sorenson, in Corpus Christi, Texas, and apparently mailed in El Paso, Texas on February 17, 1957 (Sunday):

'Sunday--Dear John and Halley. I expect to soon be out of hospital in fine shape and I wish to ask you and Hallie to do me a great favor--but I would appreciate if the two of you will draw up my will I'm leaving everything to you and her Hallie your wife I think you will have to have a lawyer to make out the will and maybe the two of you work that all out to but just in plain united states English language please do this for me--and after all sickness, and funeral expenses & just debts be paid all goes to you and Hallie--I'm not able to go to town yet, so as soon as you do this me know. The bank is going to dig a well on our farm so think of what that will be for you & Hallie Jean is so happy and is in a nice home--John I just notice I did not get letters to you I intended so this explains, so send stamp--Anna--Thanks.'

(2) Letter written on Southwestern General Hospital stationery, addressed to John Sorenson, in Corpus Christi, Texas, apparently mailed in El Paso, Texas on February 26, 1957 (Tuesday):

‘Monday--Dear Hallie & John. Thanks so much for your nice card but I'm still insisting you & John please carry out my plan about my property (the will) I wont be out yet for a while. I do so much want you to have it, that's my wish. Enclosed one dollar for which you will buy 3ct stamps for me please as they are out of them here as a rule. This will be a big help for me. Please stamps We all enjoy the riddles

‘I don't see or hear about Jean but I'm sure she is very happy and the girls doing well in school. her Mother would be as proud of you I know if she were here Well so long--Lovingly your sister Anna stamp please.’

“The County Court admitted to probate parts of these letters and rendered its judgment that the appellant was the beneficiary by virtue of such, and therefore entitled to the entire estate. On appeal from the County Count, the District Court rendered summary judgment in favor of those who are Appellees in this court.

“Appellant has two points of error, which maintain that the District Court erred in granting the Appellees' Motion for Summary Judgment, and that there were genuine issues as to material facts which should have been resolved by a trial. After careful study of the letters we believe the District Court acted correctly in granting a summary judgment. It is clear that the decedent here wanted a will drawn up and the letters are evidence of her intention to have this matter attended to. She clearly asks Appellant and his wife to 'draw up my will' and suggests that they will have to have a lawyer to do so, and then she further says in her second letter that she insists on this plan being carried out.

“Appellant maintains that because she said it was her wish that they should have her estate, and that after the bills and everything had been paid 'all goes to you and Hallie', the letters were sufficient to constitute a will. This last quotation, however, is contained within the sentence where she requests Appellant and his wife to have the will drawn up in plain 'united states English language', the bills paid, etc., because she herself cannot go to town yet. Nowhere in the contents of either letter is there a definite statement conveying or giving her estate to appellant, but merely reiterated assertions that she would like Appellant and his wife to have her estate and then of course she says they must have a will drawn up so that this can be accomplished. That would explain the existence of the purported will which was 'torn into bits' by her along with the assertion that it was not written the way she wanted it. We think the District Court was correct in holding that these letters do not meet the test of a testamentary document, or as in this case a holographic will. The animus testandi is not sufficiently or clearly expressed in the letters. There must, in our opinion, be a clear and present intention in order to make the documents presented, a will.

“In Brackenridge v. Roberts,[4] the court said:

‘To give the instrument the legal effect either of a will or other revocation of former wills it must be written and signed with the present intention to make it a will or revocation.’

“We think this a good clear statement of the law by the Supreme Court. In Poole v. Starke,[5] a much later case, by a Court of Civil Appeals, the Court said:

'* * * a will is not established merely by showing an intent to make one.'[6]

“We feel that the matter before us is controlled by the above cases and that as the letters do not meet the rules and tests set forth in the above decisions, the District Court was correct in declining to admit them to probate as a will.

“We should also like to point out that in the well known case of Hinson v. Hinson,[7] the Supreme Court, after discussing the case before it and citing other cases, stated as follows:

'* * * [w]e are not permitted, however, to lift such statement out of context, but must consider the same in the light of all the provisions of the instruments.'

“The statement involved in the above case (Hinson v. Hinson) was 'Everything is yours, Darling.' The Court carefully pointed out that such a statement might have been effective to pass decedent's property had it been contained in a properly executed instrument intended as a will. The County Court in the case before us admitted parts of the letters to probate.

“The courts of other states have had this matter before them and several of them have required the same tests to be applied to a document in order that it be entitled to probate as a will. For example, in an old case styled McBride v. McBride,[8] decided in the state of Virginia, the Court there said:

'* * * it must satisfactorily appear that he intended the very paper to be his will. Unless it does so appear, the paper must be rejected, however correct it may be in its form, however comprehensive in its detail, however conformable to the otherwise declared intentions of the party, and although it may have been signed by him with all due solemnity, * * *'

“This case was cited in Brackenridge v. Roberts. In California, the court there said:[9]

'However, before a document will be admitted to probate as the last will and testament of the decedent, it must satisfactorily appear that the maker of the instrument intended by the very paper itself to make a disposition of his property in favor of the party or parties claiming thereunder.'

“We have set forth in detail the above authorities, as well as full copies of the two letters involved, because the courts have always tried as far as possible to give full intent to a decedent's wishes. However, this can only be done when the document or documents proposed, satisfactorily meet the tests outlined in the above decisions. As we have said earlier, we do not believe the two letters here evidence anything more than an intention or desire on the part of the deceased to dispose of her property to Appellant and his wife by means of a will to be prepared. We cannot find in the two letters any evidence that such were to be the will of the decedent, or were intended to transfer or dispose of any of her property. They were merely manifestations of her intent and desire at that time.

“Appellant relies heavily on case of Barnes v. Horne.[10] Without quoting at length from this case we see no conflict, as there is a different type of language involved, as there the writer said

'* * * I will do everything I can for her and everything I have is hers if I happen to cash in.'

In this opinion, the Court says as follows:

'An instrument is testamentary in character when it makes a disposition of the testator's property, or a portion thereof, to take effect at his death.'

Also, the Court Makes the following statement:

'If, on the other hand, he meant only to say that he expected to make a will, and to state how he intended to dispose of his property in such will, then the language used would not constitute a will.'

“In conclusion, we repeat that after careful examination of the letters proffered by the proponent and the authorities cited herein, we are constrained to hold that the letters do not meet the tests as outlined above, and constitute only an intention or a wish to have a will prepared so that Appellant might obtain her property at her death. We cannot find words of present intention or disposition. Therefore, Appellant's points are overruled, and the judgment of the trial court is in all things affirmed.”

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Inferences on Inferences

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Adequacy of proof and inferences on inferences.

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

“This is a ‘Lost Will’ case. In 1969 Miss Josephine Allebach executed a will. After her death, on May 24, 1974, the original of the Will could not be found. The principal beneficiary under the Will, Reverend Leslie T. Griffin, sought probate of an unsigned copy of the Will. Josephine L. Berry, and others, contested the probate of the 'Lost Will' on the ground that the decedent revoked her will prior to her death by destroying the Will. After a jury trial the court admitted the 'Lost Will' to probate. We reverse and render.

“The jury found: (1) that when last seen the Will was not in the possession of the deceased or in a place where she had ready access to it, (2) that the original Will was not found after Josephine Allebach's death, and (3) that the deceased did not revoke the Will.

“Where a validly executed will was last seen or accounted for in the possession of the decedent, or in a place where the decedent had ready access to it, and it cannot be found after the deceased's death, the presumption arises that the testatrix destroyed it with the intention of revoking it.[11] In the case before this court the presumption arises because there is no dispute that the Will of Josephine Allebach was validly executed and could not be found after her death. Two witnesses testified that the Will was last seen in the testatrix' possession. The proponent of the Will claims that there was testimony upon which the jury could rely to rebut the 'possession testimony', and that the presumption of revocation did not arise. T. R. Allebach, acting under a power of attorney, entered Josephine Allebach's safe deposit box, per her directions, and delivered its contents to her at her home. He found in the safe deposit box an envelope with the word 'Will' marked on it. After delivering it to Josephine Allebach, she took it out of the envelope and said, 'This is my will.' T. R. Allebach also testified that the deceased showed him the Will at her home one month before her death.

“Paul Bryant corroborated T. R. Allebach's testimony. Bryant went with T. R. Allebach to the bank and aided him in emptying Josephine Allebach's safe deposit box and delivering its contents to her at her home. Bryant also saw the envelope marked 'Will' and testified that Josephine Allebach took the envelope and said that it was her will.

“The proponent relies on the testimony of Irene Werlla that the Will was never in the house. Werlla, and her husband, lived in the house with Josephine Allebach and served as her caretaker and companion. Werlla testified that Josephine Allebach told her that the Will was in her safe deposit box. Other witnesses called by the proponent testified as to Josephine Allebach's good and sound mental state before her death. There was also testimony that the deceased had not discussed revoking her will and still felt amicable toward the principal beneficiary of her will.

“The rule is well settled that an inference may be drawn from a fact proved, but an inference may not be drawn from an inference.[12] Werlla's testimony, if accepted, establishes only that she never saw the Will in the house. It may be inferred from this that the Will was not in the house, but from that inference it may not be inferred that the Will was never in Josephine Allebach's possession or in a place where she had ready access to it.

“Werlla's testimony was not evidence that the jury could rely on in finding that the Will was not in Josephine Allebach's possession or in a place where she had ready access to it. Only T. R. Allebach and Paul Bryant gave testimony that could be considered on the 'possession' question. Both testified that they delivered an envelope marked 'Will' to Josephine Allebach, that she took possession of it, and she declared it to be her will. Where there is no evidence to the contrary, the jury may not disregard the undisputed evidence and decide such issue in accordance with their wishes.[13] The testimony of T. R. Allebach and Paul Bryant, coupled with the fact that the Will was not found after Josephine Allebach's death, resulted in the presumption of revocation as a matter of law.

“Assuming arguendo that the jury could properly disregard the testimony of T. R. Allebach and Paul Bryant that they took the Will to the deceased from her safe deposit box because what they actually delivered to the deceased was a mere copy of the Will, the presumption of revocation must still arise. The presumption, if not established by the testimony of delivery to the deceased of the Will from her safe deposit box, is then established by Paul Bryant's uncontroverted testimony that in earlier years Josephine Allebach would leave the Will in his possession when she would take a trip and that he always delivered it to her upon her return. Ignoring the safe deposit box delivery testimony as evidence of when the Will was last seen, then the only other time the Will was last seen was when Paul Bryant returned the Will to Josephine Allebach after her last vacation. In that case, the Will was last seen in the possession of the deceased and not having been found after her death, the presumption of revocation arose as a matter of law.

“To overcome the presumption of revocation, evidence of a clear and convincing nature must be produced that the will was not revoked.[14] This standard requires that the evidence should not be ambiguous, equivocal, or contradictory and that it be sufficient to carry conviction to an unbiased and unprejudiced mind.1[15] [16]

“Continued affection for the principal beneficiary of a will is of no material significance in rebutting the presumption that the will was revoked.[17] The proponent's witnesses' testimony that Josephine Allebach felt kindly toward Reverend Griffin is insufficient to rebut the presumption of revocation.

“Furthermore, there is no evidence from which the jury could have found that the Will was fraudulently destroyed by another. Although T. R. Allebach had access to Josephine Allebach's papers and had at one time after her death mistakenly stated that he had the Will (when indeed he had only a copy), any finding of destruction would be pure speculation and surmise. It is undisputed that T. R. Allebach had no interest in the estate under the Will or as an heir. A mere surmise of destruction is insufficient to rebut the presumption of revocation.[18]

“Werlla's testimony that she never saw the Will in Josephine Allebach's house is likewise insufficient to rebut the presumption of revocation.[19] In short, there was no evidence introduced to rebut the presumption that Josephine Allebach destroyed her will with the intention to revoke it. Even if we were to apply a lesser standard of evidence, that to rebut the presumption of revocation the proponent of the 'Lost Will' need only come forward with some evidence that the deceased did not destroy her will with the intent to revoke it, we would still find the proponent's evidence legally insufficient because the testimony of continued affection is immaterial, the evidence of destruction must be more than mere surmise, and Irene Werlla's testimony can raise no more than an inference that the Will was not in the deceased's house.

“A lost will may present perplexing problems for beneficiaries, heirs and the court. The legislature has provided a method of avoiding the problems attendant when a will becomes lost. The Probate Code provides for a deposit of a will with the county clerk for a nominal sum. Few people make use of this privilege.[20]

“The judgment of the trial court is reversed and it is rendered that the application for probate of the Will is denied.”

The amount of evidence required.

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Beware! Dodd was specifically disapproved by the Texas Supreme Court in Glover. See Glover in the introductory course.

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

“This is an Appeal from a Judgment from the 114th Judicial District Court of Smith County, Texas, wherein the trial Court withdrew the case from the consideration of the jury and denied the probate of a lost Will. The Appellant was named Executor in the Will and a carbon copy of said Will was secured by Appellant from . . . Harry Haigler, an attorney who drew the Will, and attempted to probate the same in the County Court of Smith County, Texas, which probate thereof was denied by the County Judge . . . the District Judge withdrew said case from the consideration of the jury, denied the probate . . . .”

“ ‘The sole and only question in this case is whether or not the Proponents of the lost Will, whereby the carbon copy of same was offered, were entitled to a jury determination as to whether or not the original Will has been revoked. . . . Archie D. Beaty, a wrecking yard operator and resident of Tyler, Smith County, Texas, had been previously married . . . to Jerry Beaty, and . . . during that marriage, the decedent had adopted Cathy D. Beaty, the natural daughter of his, then, wife [Jerry]. Archie D. Beaty and Jerry Beaty were subsequently divorced in 1959 and Archie D. Beaty was subsequently killed February 16, 1963 in an automobile accident in Smith County, Texas, in which accident one of the attesting witnesses to the lost Will was, likewise, killed. The Will, a carbon copy of which was offered, was executed December 20, 1962, and when last seen, the Will was executed with all of the formalities required by law and was in a coat pocket of the decedent. No Will was found after his death. The testimony . . . was by . . . Harry Haigler, the attorney who drew the Will, Joe E. Wilson, one of the attesting witnesses to the Will, and several witnesses showing motive for the execution of the Will as drawn and statements by the decedent as to its being in existence together with suspicious circumstances which could have accounted for its disappearance. The last witness who heard the decedent mention the Will was. . . Marion Sams, an employee of the decedent, who talked to him approximately two hours prior to Mr. Beaty’s death. The carbon copy of the Will was contested by the Appellee, as Guardian of the adopted daughter, for the reason that if Archie D. Beaty died intestate, his Estate would pass and vest in said adopted daughter but if the carbon copy of the Will were allowed to be probated, then his Estate would pass by the Will to his sister, Katherine French, who is now Administratrix of his Estate.'

“After the Will was executed it was delivered to Mr. Beaty, the decedent. It is also clear that the Will of the deceased was last seen in his possession, in his coat pocket at his home at his wrecking yard near Tyler. The decedent died nearly two months after the execution of his Will, and after his death upon immediate, diligent and extensive search, no Will of decedent was found, either in his home, place of business, automobile, on his person, in his lock box in his Tyler Bank, or in any other place. There was no testimony offered that it had been last seen in the possession of anyone other than the decedent.

“The carbon copy of the Will was not signed by decedent or any attesting witnesses. Only the original Will was executed and no duplicate Will was executed, and as above stated, the original Will, the only executed Will, was never found and was last seen in the possession of decedent.

“The law applicable to the case at bar is correctly stated by the Amarillo Court of Civil Appeals in Bailey v. Bailey.[21] We quote from the Bailey case in part as follows:

‘The law is well established in this State, as well as in almost every jurisdiction in this country, that in a proceeding to probate a will, where it is shown that it was executed by the decedent and when last seen or accounted for, it was in his possession or in a place to which he had ready access but after his death it can not be found, the presumption arises that the testator destroyed it in his lifetime with the intention of revoking it. The presumption that it 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.’[22]

‘A summation of the testimony relied upon by appellees to overcome the presumption that Dr. Bailey intentionally destroyed his will with the purpose of revoking it brings us inevitably to the conclusion that it constituted nothing more than suggestions, possibilities, and surmises. We do not find any evidence whatever that the testator did not destroy, and did not intend to destroy, his will for the purpose of revoking it. As is shown by the authorities cited above and many others that could be cited, both in this State and in other jurisdictions, the presumption that he did so stands in the place of positive proof and it can be overcome only by clear and convincing[23] evidence. In the recent case of Bob’s Candy & Pecan Co. v. McConnell,[24] our Supreme Court said: ‘An inference cannot be based on a mere possibility. It can be based only on a fact proved or on something known to be true.[25] It cannot be based on a mere surmise or conjecture. Inferences of fact cannot be drawn from uncertain premises.[26] ’

‘Appellees not having produced any substantial evidence that Dr. Bailey did not destroy his will animo revocandi, the court below was not warranted in admitting the will to probate. Appellants' motions for a directed verdict and for judgment non obstante veridicto should have been sustained. The judgment will therefore be reversed and, since the record indicates the case was fully developed, judgment will here be rendered denying the application of appellees to probate the will.'

“The evidence relied upon by appellant to substantiate his burden of rebutting and overcoming the presumption of revocation consists of evidence relative to motive for the execution of the will as drawn, suspicious circumstances which could have accounted for the disappearance of the Will and uncorroborated statements of the decedent concerning the Will.

“After carefully considering the record in this cause it is our view that appellant did not produce any substantial evidence of probative force of the clear and convincing nature necessary to overcome the presumption of revocation of the will by the decedent.

“We hold that the trial court correctly removed the case from jury consideration and correctly rendered judgment denying probate of the will in question.

“The judgment of the trial court is affirmed.

* * * * *

How much evidence is enough?

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

“This is an appeal from a judgment from the 114th Judicial District Court of Smith County, Texas, denying the probate of a lost will. The appellant was named Executor in the will and a carbon copy of said will was secured by appellant from . . . J. W. Tyner, an attorney who drew the will.

“Appellant filed application to probate the carbon copy of the will, which was contested in the Probate Court of Smith County, Texas. The Probate Court admitted the will to probate. Upon notice of appeal, the case was tried de novo before a jury in the 114th District Court. Upon the closing of the evidence by all the parties and before submission of the case to the jury, appellees moved for an instructed verdict which was overruled. The cause was submitted to the jury on . . . Special Issues. The first of said issues inquired of the jury if ‘the Last Will and Testament of Minnie L. Chambless, which has been admitted in evidence in this case, when last seen, was in the possession of another person?’ and the jury answered ‘It was in the possession of another person.’ . . . .

“Miss Betty Parker and Minnie Lee Parker Chambless were sisters. Miss Parker was never married. Mrs. Chambless was married once only (her husband predeceased her) and they had no children. These two sisters lived in a duplex in Tyler, Smith, County, Texas, but lived in separate apartments therein.

“Appellant, through its pleadings in the trial court, alleged that on the 12th day of September, 1962, Mrs. Chambless executed a self-proving will in the office of J. W. Tyner, her attorney, and the witnesses to such will were J. W. Tyner and Martin Z. Sammons, Jr. The original will was delivered to the Testatrix, Mrs. Chambless, and a carbon copy was retained by her attorney.

“Upon Mrs. Chambless's death, a diligent search was made and no will was discovered.

“Appellant filed an application to probate the carbon copy of the will taken from the office of J. W. Tyner.

“Appellant, by its first three points of error, contends that the trial court erred: (1) in granting appellees; motion for judgment non obstante veredicto because the finding of the jury is amply supported by the evidence; (2) in refusing to grant appellant’s motion for judgment on the verdict of the jury because such verdict is amply supported by the evidence; and (3) in refusing to grant appellant’s motion for instructed verdict because appellant presented a prima facie case showing execution of a valid will which, when last seen, was in the possession of a third party and appellees failed to present any evidence of revocation of such will.

“Section 88 of the Probate Code of Texas prescribes the proof required to entitle a will to probate, one essential being that it has not been revoked by the Testator, and Section 63 of the Probate Code of this state prescribes the manner in wh