Texas - Probate of Lost Wills (Advanced)

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© A. Hawkins

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 the court’s opinion, the teacher provides an italicized commentary.

Texas Missing or Lost Wills

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

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

The Burden of Proof

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

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

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

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

Attorney Liability & Attorney Lost the Will

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

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

Revocation Without Probate and The Attorney Lost the Duplicate Will.

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

Did the attorney lose the will?

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

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

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

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

Actual and Exemplary Damages Against A Lawyer

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

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

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

[ * * Cases in this course. * * ]

The 4 year period of limitations

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

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

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

Lost and Found Wills

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

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

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

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

The Accountant Caper

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

It helps to have the court like you

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

A nonsuit may not be valid

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

Howard Hughes’ Multifaceted Contribution to the Law of Missing Wills

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

Dead Man’s Statute

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

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

Dead Man’s Statute and Joint Wills

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

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

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

Was there a diligent search?

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

The letters about the missing Will

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

Inferences on inferences

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

The amount of evidence required

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

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

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

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

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

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

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

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

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

Proof of a Missing Will by Proving a Codicil

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

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

* * * * *

Alphabetical Case List

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 4 year period of limitations.

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

* * * * *

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

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

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

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

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

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

“Appellant contends in its first point of error that a declaratory judgment action cannot be used to determine appellant’s will claim. Under the Texas Probate Code, a definite plan has been provided for the proving and finding of lost wills. Tex.Prob.Code §§ 84, 85. 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. Tex.Prob.Code § 85. Section 73 provides for a four year period from the time of decedent’s death within which to offer a will for probate. Tex.Prob.Code § 73. 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[3]

“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. P. & M. Electric Co. v. Godard, 478 S.W.2d 79 (Tex.1972).

“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. See Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975); Note, Motions to Disqualify Counsel Representing an Interest Adverse to a Former Client, 57 Texas L.Rev. 726, 739 (1979). Lummis has retained Andrews, Kurth as her counsel in all of the probate proceedings relating to Hughes' estate in this state and others. She would suffer extreme hardship if Andrews, Kurth were to be forced to withdraw from this case.

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

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

* * * * *

Fuller involves the burden of proof and requirement of fact finding, and 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. Section 85, Texas Probate Code.

“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. McClusky v. Owens, 255 S.W.2d 939 (Tex.Civ.App. Dallas 1953, writ ref.).

“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. Sparkman v. Massey’s Estate, 297 S.W.2d 308 (Tex.Civ.App. Dallas 1956, ref. n. r. e.).

“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. See Farr v. Bell, 460 S.W.2d 431 (Tex.Civ.App. Dallas 1970, writ ref'd n. r. e.).

“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. Brown v. Byrd, 512 S.W.2d 753 (Tex.Civ.App. Tyler 1974, no writ hist.).

“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.

* * * * *

Stasburger 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. Stasburger 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 witnesses, not the “experts.” Stasburger also contains an erroneous and utterly absurd statement that a person who receives a bequest in one Will, and a smaller bequest in a subsequent purported Will, has no interest which allows a challenge to the subsequent will. It is elementary that a person may challenge a purported subsequent will if they get less if the Will is probated than if it is not probated. Sometimes courts get confused. Sometimes they say strange things. This is one of those times.

Stasburger 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[4] 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 Am.Jur., p. 350, sec. 137, quoted with approval in Baumagarten v. Frost, 143 Tex. 533, 186 S.W.2d 982, 985, 159 A.L.R. 428.

“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. Masterson v. Harris, 107 Tex. 73, 174 S.W. 570; Michaelis v. Nance, Tex.Civ.App., 184 S.W. 785, error refused; Owens v. Felty, Tex.Civ.App., 227 S.W.2d 379, error refused.

“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. Article 5, sec. 6, Constitution of Texas, Rules 451, 453, and 455, T.R.C.P.; In re King’s Estate (King v. King), 150 Tex. 662, 244 S.W.2d 660; Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97; Matlock v. Matlock, Tex.Civ.App., 245 S.W.2d 536; Hambrick Consolidated v. Walker, Tex.Civ.App., 269 S.W.2d 923.

“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. Harris v. Robbins, Tex.Civ.App., 302 S.W.2d 225; 57 Am.Jur., p. 639, sec. 983.

“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. May v. Brown, 144 Tex. 350, 190 S.W.2d 715, 165 A.L.R. 1180; Brackenridge v. Roberts, 114 Tex. 418, 267 S.W. 244, 270 S.W. 1001. 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.[5] Stenzel v. Fischer, Tex.Civ.App., 195 S.W.2d 254, 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.[6] 3-B Tex.Jur., p. 303, sec. 882, and p. 717, sec. 1057.

“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.[7] 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 matters, as does the testator’s known wishes. 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[8] 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[9] at the time of her death. It was undisputed that she was the victim of various serious maladies[10] 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 concluded that the judgments in the respective appeals must be affirmed.”

* * * * *

Was the “missing will” ever a valid will?

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

“This is an appeal from an order denying probate of a written will not produced in court. Appellant was the proponent of the alleged lost will. At the conclusion of appellant’s case, and after appellant rested, appellee moved for judgment. The court granted the motion, finding that TEX.PROB.CODE § 85[11] had been satisfied as to the contents of the will and reason for non-production, but that due execution of the will was not proved. We affirm.

“This case is before us on a judgment granted at the close of appellant’s case. The standard of review is the same as a case where an instructed verdict is granted in a jury trial; that is, the reviewing court must decide whether a material issue of fact has been raised, viewing only the evidence favorable to the plaintiff and indulging in every reasonable inference in the plaintiff’s favor. R.W.M. v. J.C.M., 684 S.W.2d 746, 747 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.); Kennedy v. Kennedy, 619 S.W.2d 409, 410 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ); Cameron County Good Government League v. Ramon, 619 S.W.2d 224, 226 (Tex.Civ.App.--Beaumont 1981, writ ref'd n.r.e.). If no evidence exists to support one or more of the essential elements of plaintiff’s case, then no error occurred in granting the motion for judgment. McDaniel v. Carruth, 637 S.W.2d 498, 504-505 (Tex.App.--Corpus Christi 1982, no writ).

“Appellant, as plaintiff in the instant case, had the burden of satisfying the requirements of Section 85 with respect to a written will not produced in court. In re Estate of Rosborough, 542 S.W.2d 685, 688 (Tex.Civ.App.--Texarkana 1976, writ ref'd n.r.e.). The following are the essential elements that must be proved: (1) proof that the will was duly executed as called for in Section 84; (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. Section 85. See also Howard Hughes Medical Institute v. Neff, 640 S.W.2d 942, 951 (Tex.App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.); In re Estate of Simms, 442 S.W.2d 426, 432 (Tex.Civ.App.--Texarkana 1969, writ ref'd n.r.e.).

“As to element (2) above, the trial court ruled that there was satisfactory proof of the cause of non-production. There was some evidence of the contents of the will, the third element above. This came from testimony by Hazel Coulson, the sister of the deceased, that she had read the will and it was the same as the unsigned copy admitted into evidence. The unsatisfied requirement, according to the trial court, was proof that the will was duly executed [element (1) above]. The issue before us, then, under the "no evidence" standard of review, is whether any evidence existed of the due execution of the alleged lost will. In this regard, we consider appellant’s two points of error.

“In his first point of error, appellant contends that the trial court erred in refusing to admit evidence of due execution in the form of written answers to written questions by one of the witnesses to the May 4, 1979, will and by the attorney who drafted it. The basis of the court’s ruling was that the requirements of TEX.R.CIV.P. 208, governing written depositions, were not satisfied.

“Rule 208 sets out a very detailed procedure for deposing persons through written questions. The rule requires written notice containing specified information to be served upon all other parties in an action. The rule, in addition to other specific requirements, calls for the appointment of a deposition officer to collect the questions, administer an oath to the deponent, and otherwise conduct the deposition. The deposition is then to be filed and there to remain available for inspection by the parties to the action.

“The record in this case contains no evidence that any written notice was sent. No deposition officer appears to have been appointed. In fact, appellant’s attorney admitted in the record that he drove to the place of deposition and personally handed the questions to the persons to be deposed. Appellant’s attorney titled the questions, and repeatedly referred to them, as "interrogatories." Further, he argued before the trial court that Rule 208 was inapplicable and that Rule 168, governing interrogatories to parties, should control. This is obviously not the case, since neither of the deponents were parties. Appellee’s attorney stated that the questions and answers were completed and filed before he even learned when the persons were to be deposed. He had no opportunity to file cross-questions. The procedural requirements of Rule 208 were clearly unsatisfied.

“Appellant argues that appellee waived any objection to the form of the deposition, citing TEX.R.CIV.P. 207(3). This provision is also inapplicable. It states that objections to the form of the notice or the actions of the deposition officer are waived "[w]hen a deposition shall have been filed and notice given at least one entire day before the day on which the case is called ..." Here, appellant failed to give any formal notice of the deposition. He cannot now claim that notice defects were waived when there was no notice to be defective. We hold that the trial court did not err in excluding this proof of execution. Appellant’s first point of error is overruled.

“Appellant argues in his only other point of error that due execution of the May 4, 1979, will need not be proved, since a codicil dated March 6, 1983, served to republish it. The alleged codicil was not introduced into evidence. It may not in any event be considered as proof of the validity of the May 4, 1979, will. Appellant’s second point of error is overruled.

“The question remains whether any evidence of due execution exists in the record. An unsigned copy of the will was admitted into evidence. It consists of four pages. The first two pages consist of the body of the will, the third page has standard recitals and spaces for the signature of the testator and witnesses, and the fourth page contains a self-proving affidavit substantially as provided for in Section 59 of the Texas Probate Code. Hazel Coulson, the sister of the deceased, testified that she had read the will in March of 1983, and that it was signed by her sister and two witnesses on page three. However, she testified that she did not remember whether page four, the self-proving affidavit, was signed. Her testimony was as follows:

Q All right. The original that you read on March 4, 1983, the fourth page can you recall whether or not there were signatures there?

A I know there was signatures on the third page, but I don’t know. I really don’t know.

“The required proof for probate of a will is set forth in Section 88 of the Probate Code. Hazel Coulson was unable to testify that the self-proving affidavit was properly executed. Where the will is not self-proved under Section 59, the proponent must prove to the court’s satisfaction that the will was executed with the proper formalities. Section 88(b)(2).

“The record contains no evidence that the witnesses to the May 4, 1979, will were of the requisite age, were credible, or whether their signatures were properly executed in the presence of the testator. Section 59; Howard Hughes Medical Institute v. Neff, 640 S.W.2d 942, 949 (Tex.App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.); Stewart v. Long, 394 S.W.2d 25, 29 (Tex.Civ.App.--Dallas 1965, writ ref'd n.r.e.). We find no evidence that the alleged lost will of May 4, 1979, was duly executed. . . .

“The order of the trial court denying probate of the will is affirmed.”

Multiple Original Wills

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Multiple Originals - What is the result if multiple original Wills are executed and one can’t be found? Some Texas lawyers routinely have Wills executed in multiple originals. In Sparkman, a court of appeals held that a duplicate could be admitted, but the facts were extreme. There was ample reason to believe that the decedent did not intend to revoke her will and did intend that the duplicate Will would be probated if the other original was missing. In its footnote 1, the court presents the background:

“Contestant was the husband of deceased by a marriage ceremony of July 13, 1955. After 18 days the parties had separated, she filing suit for divorce on grounds of cruelty, which action was pending at time of her death.”

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

“R. C. Taylor offered for probate a writing alleged to be the last will of Eva Mae Massey, dated January 27, 1950, executed with all formalities required by law, except that same was a carbon copy of the original will and is contested on such ground. Upon hearing in County Court, the contest was overruled and the instrument in question admitted to probate. On appeal to the District Court and similar ruling after trial, contestant excepted and has duly brought such adverse judgment to this Court for review.

“On above date the will of decedent was prepared by Attorney J. C. Muse, Jr., at her instance; signed by Mrs. Massey and witnessed by the Attorney and his secretary, Miss Marder. Both the original draft of the will and a carbon copy thereof were signed by testatrix and attesting witnesses in keeping with statutory requirements. As already stated, it was this carbon or duplicate copy of the original will that was offered for probate.

“Mr. Muse delivered the original will thus signed and witnessed to Mrs. Massey and she left his office with it; he retaining the carbon copy in his file under circumstances later to be related in the testimony. Testatrix died August 27, 1955 and after diligent search the will (original copy) was never found among her effects. The following points of appeal are presented in such connection: The trial court’s error: (1) 'in admitting to probate a carbon copy of the will executed by Eva Mae Massey on January 27, 1950, since the original will was not found and was last seem or known of in the hands of Eva Mae Massey. Since the will was not found a legal presumption was raised that the same was destroyed by testatrix with the intention of revoking same and such presumption was not overcome by proof of proponent to the contrary'; (2) 'in permitting the proponent of the will to testify as to transactions with the testatrix as such testimony is specifically barred by Article 3716, Revised Civil Statutes of Texas, as he was a party to the suit, being the proponent of the will and was also the husband of an heir.'

“Turning to the record, excerpts from the testimony of Mr. J. C. Muse, as elicited on direct and cross-examination, relative to these duplicate wills (original and carbon) should first be stated:

'Q. * * * I observe on the instrument which has been identified as Proponent’s Exhibit No. 1 that it is referred to on the back of it as 'Duplicate Will'. I'll ask you whether or not you had another copy of this same instrument executed on the same occasion sir?

A. That is true.

'Q. And what happened to the other copy?

A. The other copy was delivered to her and she delivered this copy to me to keep.

'Q. All right. Now did you have any conversation with her on the occasion in question as to the desirability or non-desirability of executing a will in duplicate originals such as this?

A. I explained to her that for many years we had followed a practice of preparing duplicate wills and that we preserved one copy in our office, if we were requested to do it, and that we had a file there, and I explained to her that it was easy for the will to be tampered with or destroyed and that that was another one that she could come back and get that would not be tampered with that was left in the file for that purpose. And then she said that she would like to leave a copy there. And when that was done Miss Marder put this instrument in an envelope, marked it and sealed it in the presence of Mrs. Massey. And it was then delivered to her. And she put it in that file we had.

'Q. Now with respect to the other copy, have you ever seen that again?

A. I have never seen it since she took it away with her. * * *

'(On cross-examination) Q. Mr. Muse, I will ask you again to look at the will and tell us whether or not that isn’t a carbon copy of an original paper or instrument that was drawn for Mrs. Massey?

A. That is true.

'Q. And you gave the original to Mrs. Massey, isn’t that true?

A. It is apparent that we did.

'Q. Will, there were only two drawn, weren’t there sir?

A. No.

'Q. Well, where are the others?

A. I have-I keep a copy of every will that is written in my office for my own files, and there’s a yellow copy that I have.

'Q. Where is that?

A. It is up in my office. It wasn’t executed. There were only two copies executed.

'Q. And you gave * * * the executed copy which was on the original paper to Mrs. Massey, isn’t that true sir?

A. That is true.

'Q. And she left with it as her will, isn’t that true? A. She did what?

'Q. She left with that as her will, the original?

A. That isn’t what I think about it.

'Q. Well, that was true. You said this is your will, and she took it, did she not, Mr. Muse?

A. No sir. She left with me the duplicate copy of her will, which I had informed her was also a will and that if something happened to the other one that she could use this one. That is what I told her.

'Q. And she took the other one with her?

A. That’s the one we gave her, that’s right.

'Q. Well, she took it with her. You saw her leave with it?

A. Oh, yes.

'Q. Now, did she ever come back and see you any more about either of the will or this duplicate?

A. Never about her will, no.

'Q. You never had any further discussion with her in your professional capacity, as her attorney, about the will?

A. No. That was a closed matter. She didn’t discuss with me making any changes in the will but she did discuss other matters that related to her estate.'

“At time of above testamentary transactions (January 1950) Mrs. Massey was a widow, her husband, Richard Preston Massey, a retired merchant, having died in 1948. All of her property of more than $10,000 in value was left by these instruments to a nephew, Robert Preston Taylor, then twelve years of age, to be his in fee simple if over 21 years at time of her death, or in trust until that time should he be a minor on her decease. She was childless and had held this beneficiary in affectionate regard since his birth. Undisputed testimony was adduced concerning the close affection of testatrix for this particular nephew in statements made by her to others before and after making of the dated will; some only a few weeks before her death. Such testimony will be detailed briefly.

“Mrs. O. D. Grimes testified to a conversation had with Mrs. Massey in May 1955, deceased expressing her deep fondness for Robert Preston; that her will had been drawn leaving everything to him; and with respect to where the will was, that 'her lawyer had it.' Mrs. Tommy Morris, niece of deceased, similarly related statements made by Mrs. Massey to her before and after 1950; of decedent always speaking affectionately of 'Bob' and that all her property would go to him. T. M. Walker, a real estate man and an old acquaintance of Mrs. Massey, told of a conversation with deceased between the 10th and 20th of July, 1955, to effect that he had received a cash offer of $12,500 for property belonging to her, and that if sold, she should take good care of the money; Mrs. Massey answering that she had a will making over everything to her nephew for purpose of his education. And lastly, a letter of date August 17, 1955 (she died August 27), identified as in handwriting of deceased and addressed to her sister, Mrs. Taylor, mother of Robert Preston. Such letter referred to her late unfortunate marriage to contestant Sparkman, their separation, and her expected judgment of divorce after thirty days upon suit therefor. Testatrix also referred in the letter to 'Bob' with expressions of affection, suggesting that he spend a week with her.

“The original of these testamentary instruments having been last seen in custody of the testatrix and not found at her death after due search, the case was tried as one involving a lost will; requiring appellee to assume the burden of proving that the will had not been destroyed by deceased with intent to revoke it. Art. 8285, sec. 63, Texas Probate Code, provides: 'No will in writing, and no clause thereof or devise therein, shall be revoked, except by a subsequent will, codicil, or declaration in writing, executed with like formalities, or by the testator destroying or canceling the same, or causing it to be done in his presence.'

“Above italicized proviso of the statute has uniformly been given the following construction by Texas Courts: Where the will of a testator was last seen in his possession and could not thereafter be found, the presumption arises that he has destroyed it animo revocandi, and the burden is on proponent by competent evidence to prove the contrary. In other words, 'The inference or presumption which is generated by the facts in question may be overcome or rebutted; it is not conclusive.' 44 T.J. 920; Aschenbeck v. Aschenbeck, Tex.Civ.App., 62 S.W.2d 326; Shepherd v. Stearns, Tex.Civ.App., 45 S.W.2d 246; Howard v. Combs, Tex.Civ.App., 113 S.W.2d 221; Combs v. Howard, Tex.Civ.App., 131 S.W.2d 206; and if rebuttal testimony be offered, revocation or not of the instrument becomes an issuable fact for a court or jury. Howard v. Combs, supra. As evidence showing the state of decedent’s affections subsequent to execution of the will, proof may be made of his declarations or statements; in particular to show that the close relationship between decedent and the named beneficiary had continued without interruption until the former’s death. 44 T.J. 922.

“Consistent with above principles, an issue concerning a revocation of the missing will of Mrs. Massey has been raised by the testimony, resolved by the trial court in favor of proponent; the testatrix having recognized its continued existence, and her affection for the chief beneficiary thereunder remaining steadfast to the end. Furthermore, there is not a circumstance in evidence tending to show dissatisfaction on part of testatrix with her oft-mentioned will or of any desire to cancel or change the 1950 testamentary instrument after its execution.

“Appellant points out that appellee has not here sought the establishment of a lost will, but instead makes application to probate 'a carbon copy of the will of Eva Mae Massey as if it were the will itself'; arguing that ’since proponent failed to show the copy succeeded to the place originally held by the original instrument, it is plain that the proponents have failed to establish grounds for the probate of such carbon copy as the will.' But as already stated, the trial court without objection has required a trial of the cause on theory of a lost will. See Rule 67, Texas Rules of Civil Procedure.

“R. C. Taylor, proponent, was called as a witness to make formal identification of the letter of deceased to her sister, of date August 17, 1955, over objection of appellant that such constituted a transaction with the decedent within purview of Art. 3716, V.A.C.S. However, the decisions are to the contrary. See Martin v. McAdams, 87 Tex. 225, 27 S.W. 255; Williams v. Farmers' Nat. Bank, Tex.Civ.App., 201 S.W. 1083.

“All points of appeal are overruled and judgment of the trial court affirmed.”

Jurisdiction

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If the court lacks jurisdiction, the proceedings are void. Texas, probate jurisdiction is complicated at best. If the court lacks jurisdiction, the proceedings are void and nothing counts. In general, jurisdiction is beyond the scope of this course. Merrick is included to alert you to the futility of litigating missing Wills in courts that lack jurisdiction. Note that the trial court judges did not know which court had jurisdiction. If jurisdiction interests you, see YouKnowItAll.com’s continuing legal education courses, on Texas probate jurisdiction.

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

“The prior opinion of the court is withdrawn and this opinion is issued in lieu thereof. This is a will contest case. A brief resume of the rather complicated history of the case is necessary. Appellee Keith L. Merrick on August 7, 1979 filed suit in the Lubbock County Court to compel appellant Rowena G. Jones and others to produce a will of Frances Edith Merrick, deceased, alleged to have been in their possession. In that same cause, appellant, on August 28, 1979, then made application for letters of administration, alleging that the deceased left no valid will. Upon contest of this application by appellees, the cause was transferred on October 10, 1979 by the Lubbock County Court to the 140th District Court of Lubbock County, Texas.

“On September 10, 1979, an application to probate an alleged lost will of the deceased was filed in the Taylor County Court by appellee Jack Richard Merrick. On November 9, 1979, upon motion of appellees, the Taylor County proceedings were transferred to the 140th District Court of Lubbock County, Texas. In the district court, upon joint motion of all parties, the various causes were consolidated. Trial was to a jury upon one issue, which inquired if the deceased had revoked the lost will in question. The jury found she had not, and the will was admitted to probate. Hence, this appeal by appellant.

“Appellant, in his first two points of error, alleges lack of jurisdiction in the 140th District Court, due to the invalidity of the transfer orders from the Taylor County Court and the Lubbock County Court. Appellees, by their first counterpoint, assert the appeal should be dismissed because of "appellant’s failure to file pleading under Probate Code, Section 10."

“In order to preserve logical continuity we initially discuss appellee’s first counterpoint. Section 10, Tex.Prob.Code provides:

“Any person interested in an estate may, at any time before any issue in any proceeding is decided upon by the court, file opposition thereto in writing and shall be entitled to process for witnesses and evidence, and to be heard upon such opposition, as in other suits.

“In probate matters, less strictness is required in pleading, particularly when the averments questioned relate to matters which the other party must affirmatively establish. Perdue v. Perdue, 208 S.W. 353, 355 (Tex.Civ.App.-Texarkana 1918), aff'd on other grounds, 110 Tex. 209, 217 S.W. 694 (1920). The application for probate of the lost will alleges that appellees are the sole beneficiaries under the will. Appellant’s application for letters of administration contains the allegation that the deceased left no valid will and therefore her surviving brothers and sisters would inherit her estate. The joint motion to consolidate contains statements that appellees "seek to show that Frances Edith Merrick died testate and that they are the beneficiaries under the alleged will" and appellant "and others seek to show that the Decedent died intestate and that they are the heirs at law of the said Frances Edith Merrick." No exceptions or allegations as to deficiencies or lack of pleading were made until appellee’s motion for instructed verdict, made after the completion of appellee’s evidence.

“We think the pleadings are sufficient to show there were two or more parties or claimants to the assets of this estate, each of whom had some legally ascertained pecuniary interest, real or prospective, which would be impaired or benefited, or in some manner materially affected, by the probate or nonprobate of the will in question, and that a bona fide dispute existed between them concerning the validity of the alleged will. This is sufficient to constitute all of the claimants persons "interested in an estate." Logan v. Thomason, 146 Tex. 37, 202 S.W.2d 212, 215 (1947). Reasonableness and practicality dictate that pleadings exist joining issue and sufficiently complying with section 10, Tex.Prob.Code.. Appellee’s counterpoint one is overruled.

“We next consider appellant’s points one and two. Succinctly stated, they raise the question whether, in Lubbock County, the district courts and/or the county courts at law have jurisdiction to try matters of this nature. In discussing these points, a brief consideration of pertinent constitutional and statutory provisions is necessary.

“In 1973, article 5, section 8 of the Texas Constitution was amended to give the district court, concurrently with the probate court, general probate jurisdiction. The legislature was specifically empowered to "increase, diminish or eliminate the jurisdiction of either the district court or the county court in probate matters ..." and "to adopt rules governing the filing, distribution and transfer of all such cases and proceedings as between district courts, county courts, and other courts having jurisdiction thereof ..." Tex.Const., art. V, § 8. Pursuant to that grant of power, the 63rd Legislature amended section 5 of the Probate Code,[12] vesting jurisdiction in statutory probate courts, county courts at law or other statutory probate courts exercising probate jurisdiction where they existed, and in the district courts concurrently with the county courts where no such statutory courts had been created. 1973 Tex.Gen.Laws, ch. 610, § 1 at 1684. In 1975, the legislature amended the section substantially as it appears today. 1975 Tex.Gen.Laws, ch. 701, § 2 at 2195. A minor amendment, not relevant here, was added to subsection (d) in 1977.

“In 1979, subsection (c) was amended to provide for transfer from the constitutional county court to the statutory probate court, county court at law or other statutory court exercising the jurisdiction of a probate court. 1979 Tex.Gen.Laws, ch. 713, § 2 at 1740. The 1979 amendment provided that, in those counties in which there is a statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court, the judge of the constitutional county court may, on his own motion, and must, on the motion of any party in the proceeding, transfer contested probate matters to one of those courts. In counties within the purview of section 5(c), transfer to one of those courts is mandatory if requested by any party to the case. Meek v. Mitchusson, 588 S.W.2d 665, 666 (Tex.Civ.App.-Eastland 1979, writ ref'd n.r.e.). For reasons hereinafter stated, we believe Lubbock County is such a county.

“Appellee argues that Lubbock County is an exception to this general rule, first, because the jurisdictional language in the laws creating Lubbock County courts is unique and, second, because of the provision contained in section 2(d) of both acts creating the Lubbock County courts that "nothing in this act shall diminish the jurisdiction of the several district courts in Lubbock County."

“Under his first argument, appellee contends that the transfer provisions in paragraph 5(c) deprived the constitutional county court of the authority to try contested probate cases, and that both of the Lubbock County courts have only limited jurisdiction, that is, concurrent with the county court, leaving only the district court to try contested probate cases.

“County Court at Law Number 1 of Lubbock County, Texas, was created in 1950 by Article 1970-340, Tex.Rev.Civ.Stat.. County Court at Law Number 2 of Lubbock County, Texas was created in 1957 by Article 1970-340.1, Tex.Rev.Civ.Stat. As originally created, neither court had probate jurisdiction. In 1977, section 2 of each act was amended to give each county court at law "jurisdiction as to all probate matters concurrently with the County Court and any other numbered County Court at Law of Lubbock County...." At the same time, section 6 of Article 1970-340, and section 7 of Article 1970-340.1 were amended to provide "the County Court of Lubbock County shall have and retain the general jurisdiction of the Probate Court concurrently with the county courts at law of Lubbock County; ..." These provisions quite clearly give the county courts at law of Lubbock County general probate jurisdiction.

“Section 5(c) does not deprive the constitutional county court of Lubbock County of jurisdiction to try contested probate cases. In the absence of a motion to transfer by any party and if the court does not sua sponte transfer, the county court has jurisdiction to try contested probate matters. Section 5(c) merely requires trial by a county court at law if either party or the county judge wishes trial in one of the county courts at law.

“We need not decide, in connection with appellee’s second argument, whether the district courts have concurrent probate jurisdiction because the jurisdiction of the county court of Lubbock County was invoked by both parties. This being the case, the transfer mandated in section 5(c) does not in any way diminish the jurisdiction of the district courts of Lubbock County.

“Appellees also argue that, since Taylor County has no county court at law with jurisdiction in probate matters, the only authority of the Taylor County Court was to transfer the probate matter, upon contest, to a district court and, therefore, the district court in Lubbock County acquired jurisdiction through that transfer. Appellees, however, originally invoked the jurisdiction of the Lubbock County Court by the proceeding filed by them. Appellant then filed application for letters of administration on the estate of decedent Frances Edith Merrick. The effect of this act was to make the matter a contested one within the provision of section 5(c). Brown v. Crockett, 601 S.W.2d 188, 190 (Tex.Civ.App.-Austin 1980, no writ). All of this took place prior to the filing of the application for probate in Taylor County.

“Section 8(a), Tex.Prob.Code provides that when two or more courts have concurrent venue, the court in which application for probate proceedings is first filed should have and retain jurisdiction. Section 8(c) (1), Tex.Prob.Code provides for transfer from a court not possessing priority of venue to the proper court in the county possessing venue priority which was, in this case, the Lubbock County Court. Transfer being to the wrong court, the district court in Lubbock County did not thereby acquire jurisdiction. We are compelled to sustain appellant’s points of error one and two.

“Appellee’s counterpoint three is styled by them as "Relating to Exclusive Jurisdiction of District Courts and Statutory Probate Courts in Contested Will Cases Involving Trusts and Title to Land." The thrust of appellee’s argument is that a dispute could arise concerning the interpretation and administration of certain real estate notes owned jointly by the deceased and the Estate of Richard Fred Merrick, deceased. Their position is that these matters could only be disposed of by a district court or a statutory probate court. No such dispute is before us, however, and we cannot consider the possibility that such a dispute might arise in a future disposition of this case. Appellant’s counterpoint three is overruled.

“The motion for rehearing is overruled. The judgment of the trial court is vacated. The transfer orders dated October 10, 1979 and November 9, 1979 are vacated.

“Jurisdiction of each proceeding remains in the constitutional county courts until transfer to a proper court for further proceedings.

Charity

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If there is a charitable bequest, the Texas Attorney General must be served. If the Attorney General is not served, the proceedings may be void. Hackfeld is also intriguing because it involves an unusual Will drafting error and missing will situation. The Will was missing before death. The testator knew it was missing. The testator did not destroy or revoke it. The testator really lost it. The interesting development is what was done about it. The testator executed a new Will with the same provisions as the lost Will, except for a minor change. That should work. It shouldn’t create a problem. But, the new Will referred to the missing Will and purported to republish the missing Will. Yikes! Why do that? The testator died, and litigation ensued. The issue would have been avoided if the new Will was a complete Will that revoked all prior Will. But, not to be outdone, the contestants erred as well, by failing to give notice of the contest to the Attorney General despite the charitable bequests. The estate, in the 1970s, was worth about $15 million. It might have been worth doing things right.

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

“This is an appeal by writ of error seeking to set aside the probate of a will.

“On November 11, 1977, Florence M. Moss, deceased, executed her last will and testament naming appellees Frank M. Ryburn, Jr. and Frank S. Ryburn as independent executors. The testatrix died at her residence in Dallas County, Texas, on December 31, 1978. Appellees duly filed an application to probate the will and for letters testamentary. After an uncontested hearing on the application, the probate court, on January 15, 1979, entered an order admitting the will to probate and appointed appellees as independent executors. On February 26, 1979, appellees, after executing an oath as executors, filed an inventory, appraisement and list of claims showing that the new worth of the estate amounted to $14,509,394.57.

“On March 13, 1979, appellants, Marilyn Hackfeld, Nancy Leavitt, and Richard Miller, grandchildren of the testatrix, and devisees under her will, filed a petition for writ of error in the Probate Court of Dallas County. The petition alleged that appellants had an interest in the matter by reason of their being heirs at law of decedent and devisees under the will. Named as parties adversely interested were appellees Frank M. Ryburn, Jr. and Frank S. Ryburn. The petition further alleged that appellants did not participate either in person or by their attorney in the trial of this cause in the Probate Court and desired to remove the order probating the will to the Court of Civil Appeals for revision and correction.

“By four points of error appellants seek to set aside the order admitting the will to probate on the ground that they were unable to obtain a statement of facts because the evidence was not recorded by a court reporter. Additionally, they contend that the proof of the will consisting of the papers on file was legally and factually insufficient to support the order probating the will.

“Before proceeding with a determination of appellants' points of error, we must consider and pass upon appellees' contention that the appeal must be dismissed because the petition for writ of error is fatally defective. It is their contention that the appeal should be dismissed for want of jurisdiction because the will contains charitable bequests requiring appellants to join the Attorney General of the State of Texas in their petition for writ of error as a "party adversely interested." As we view the record, appellees' contention must be sustained.

“The petition for writ of error recites that the "parties adversely interested" as Frank M. Ryburn, Jr. and Frank S. Ryburn. This is the only such recitation. The Attorney General is not named as a ‘party adversely interested.’ Furthermore, there is nothing in the papers showing that the Attorney General was given notice of the petition for writ of error nor has he made an appearance herein.

“The will in question, the probate of which appellants seek to set aside in this writ of error appeal, contains two separate devises of money or property to charitable organizations. Section 3 of the will provides as follows:

“I give, devise and bequeath the following:

(1) To the Highland Park United Methodist Church, Highland Park, Texas, the sum of Ten Thousand Dollars ($10,000);

“As the term "church" imports an organization for religious purposes, a gift to a church or a church society by name, without declaration or restriction as to the use to be made of the subject matter of the gift, must be deemed to be a gift for the promotion of the purposes for which the church was organized and, therefore, to be a gift for charitable purposes. 14 C.J.S. Charities § 17 p. 449. The gift to the church was unrestricted as to the use to be made of the funds. Consequently, we hold that the funds bequeathed to the church were for charitable purposes.

“Section 4 of said will provides as follows:

All the rest and residue of my estate I give, devise and bequeath as follows:

(a) One-third ( 1/3) of the residue of my estate to the trustees of the Harry S. Moss Trust for the Prevention and Cure of Heart Diseases, to be added to said trust and to be held, invested, used and expended for the same wholly charitable purposes as provided for in the will of my late husband, Harry S. Moss;

“It is clear that the testatrix intended that the funds or property bequeathed to trustees of the Harry S. Moss Trust were to be used for charitable purposes. While the Harry S. Moss Trust indenture is not a part of the record before us, there is nothing in the record suggesting that the trust established by him was not for wholly charitable purposes. Thus, according to the papers on file, which is all we have to go on, the Harry S. Moss Trust constituted a trust for charitable purposes.

“When one seeks to set aside the probate of a will which contains charitable bequests or to nullify or impair the provisions of a will which creates a "charitable trust," the Attorney General is a necessary party. Tex.Rev.Civ.Stat. art. 4412a, sec. 2, provides:

“Sec. 2. For and on behalf of the interests of the general public of this state in such matters, the Attorney General shall be a necessary party to and shall be served with process, as hereinafter provided, in any suit or judicial proceeding, the object of which is:

“c. To construe, nullify or impair the provisions of any instrument, testamentary or otherwise, creating or affecting a charitable trust, or

“d. To contest or set aside the probate of an alleged will by the terms of which any money, property or other thing of value is given, devised or bequeathed for charitable purposes.

“The term ‘charitable trust’ is defined in section 1 of the statute to include "all gifts and trusts for charitable purpose."

“The statute in question leaves no doubt of the legislature’s intention to make the Attorney General an indispensable party to any suit or judicial proceeding the object of which is to set aside the probate of a will where funds have been devised or bequeathed for charitable purposes.

“Inasmuch as this writ or error appeal can only be characterized as a ‘judicial proceeding’ and is one in which appellants are attempting to ‘set aside the probate’ of a will which contains charitable bequests and to ‘nullify or impair the provisions of’ such a will, the Attorney General is a necessary and indispensable party who must be named as such in the petition for writ of error. Estate of Bourland v. Hanes, 526 S.W.2d 156, 157-159 (Tex.Civ.App.-Corpus Christi 1975, writ ref'd n. r. e.); Akin Foundation v. Trustees for Preston Road Church of Christ, 367 S.W.2d 351, 353 (Tex.Civ.App.-Texarkana 1963, no writ).

“Rule 360, Texas Rules of Civil Procedure, states the requisites of a petition for writ of error as follows:

The petition shall state the names and residences of the parties adversely interested, shall describe the judgment with sufficient certainty to identify it and shall state that he desires to remove the same to the Court of Civil Appeals for revision and correction.

“It has been held "parties adversely interested" are parties whose interest in the subject matter of the proceeding is adverse to that of the parties seeking the writ of error or whose interest may be affected by the modification or reversal of the judgment in question. Ponca Wholesale Mercantile Co. v. Alley, 378 S.W.2d 129, 131 (Tex.Civ.App.-Amarillo 1964, writ ref'd n. r. e.); Sanitary Appliance Co. v. French, 58 S.W.2d 159 (Tex.Civ.App.-Amarillo 1933, writ dism'd); Highsmith v. Tyler State Bank & Trust Co., 194 S.W.2d 142 (Tex.Civ.App.-Texarkana 1946, writ ref'd).

“The phrase ‘parties adversely interested’ is not confined to the parties to the suit. All parties adversely interested, whether parties to the suit or not, must be named in the writ of error. Files v. Buie, 131 Tex. 19, 112 S.W.2d 714 (1938).

“By their petition for writ of error appellants seek a judgment by this court setting aside the probate of a will containing two charitable bequests. Obviously, the Attorney General is a ‘party adversely interested’ to appellants. As the indispensable representative of the public interest inherent in charitable bequests, his interest is adverse to that of appellants and that interest, most assuredly, would be affected by a modification or reversal of the order appealed from. Certainly, it seems to us, the Attorney General is an interested, adverse and indispensable party within the purview of the Rules of Civil Procedure pertaining to writs of error.

“Because of the failure to join the Attorney General in the petition for writ of error, this court acquired no jurisdiction under the faulty petition and thus appellants’ appeal must be dismissed. Files v. Buie, supra; Weems v. Watson, 91 Tex. 35, 40 S.W. 722, 724 (1897); Thomas v. Iliff, 524 S.W.2d 568, 569-70 (Tex.Civ.App.-Texarkana 1975, no writ); Reilly v. Hanagan, 225 S.W. 797, 798-800 (Tex.Civ.App.-Fort Worth 1920, writ ref'd).

“We reject appellants' contention that the failure to join the Attorney General is not fatal. In this connection appellants take the position that the papers in the case do not conclusively establish that the gift to the Methodist Church and the gift to the trustees of the Harry S. Moss Trust were for wholly charitable purposes. They base their contention on the language used by the testatrix in the introductory paragraph of the will which reads as follows:

“That I, FLORENCE M. MOSS, of the County of Dallas, State of Texas, being of sound and disposing mind and memory, do hereby make, publish and declare this my Last Will and Testament, hereby revoking all other wills and codicils to wills, heretofore made by me except my Last Will and Testament dated November 19, 1975, which I now reaffirm and republish. I have misplaced and have been unable to find the original signed will of November 19, 1975, and I have executed this Will which contains the same provisions as are contained in my will of November 19, 1975, with the exceptions that I have deleted the bequests to my brother, Carl Miller, now deceased, and to my former employee, Cecile Doughty.

“Appellants take the position that since there were two wills, both wills must be construed together in order to ascertain the total testamentary scheme of the testatrix. They argue that since the 1975 will is not in the record, the charitable bequest contained in the last will may not in fact be charitable because the 1975 lost will may have provided that the gifts in question were to be used for private purposes, i. e., for the benefit of family or friends, in which event the bequests would not be charitable, but private. In essence, they take the position that the will admitted to probate, standing alone, was not the last will and testament of the testatrix. As we view the record, appellants' argument is untenable.

“In the first place, there is nothing in the record even remotely suggesting that the 1975 will might have contained language making the two bequests in question private bequests. It is significant to note that the testatrix was careful to point out that the 1975 will contained identical provisions as those in her last will except for the deletion of two items, neither of which affected the appellants. Thus, according to the papers on file, the record conclusively establishes that the two wills were identical. Hence, to say that the 1975 will may have contained language making the two bequests in question private bequests, would be to indulge in rank speculation.

“Inasmuch as the papers on file show that the probated will which appellants seek to set aside contained two charitable bequests, it was incumbent on appellants to join the Attorney General as a party to the petition for writ of error. This they failed to do. It is therefore apparent from the face of the record that this court acquired no jurisdiction to determine the writ of error appeal.

“Being without jurisdiction, we do not reach the points briefed by appellants challenging the validity of the judgment probating the will.

“The appeal is dismissed.”

Interest

* * * * *

“Interest” refers to a financial “interest” in the outcome of the case. A party must have an “interest” in order to participate. If a party is better off with a particular result, the party has an “interest” that allows the party to litigate in favor of that result.

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

“This is an appeal from a judgment of the District Court of Harris County, Texas, which denied an application for a writ of mandamus to require Judge Pat Gregory of the Probate Court No. 2 to determine in limine whether Depelchin Faith Home has the requisite interest to contest the probate of a will offered for probate by Rayburn M. Hamilton.

“Relator filed an application to probate the will of Esther M. Mowrer, Deceased, in the Probate Court No. 2 of Harris County, Texas. Depelchin Faith Home filed a contest in which it was alleged that the Home was a beneficiary under a prior will which had been lost and that the subsequent will was invalid for various reasons. Relator challenged the right of the Home to contest the will for the reason that it was not an 'interested person' as required by the Probate Code in such cases, and demanded a separate trial in limine on that issue.

“In the meantime Depelchin Faith Home filed an application to probate the lost will. The causes were consolidated for trial. The Probate Court denied the motion for a separate trial in limine. Relator then sought to require such a trial by an action for mandamus filed in the District Court and has appealed from the adverse ruling of that court.

'It is not the policy of the State of Texas to permit those who have no interest in a decedent’s estate to intermeddle therein. Accordingly it has long been the established practice, when proper demand is made, to require one asserting a right to probate a will to first establish an interest in the estate which would be affected by the probate of such will. . . . It is too well settled to admit of argument that before one may prosecute a proceeding to probate a will or contest such a proceeding he must be, and if called upon to do so must prove that he is, a person interested in the estate. . . . The proper procedure is to try the issue of interest separately and in advance of a trial of the issues affecting the validity of the will . . .' Womble v. Atkins, 160 Tex. 363, 331 S.W.2d 294 (1960).

“The 'interest' required must be a pecuniary interest. In Logan v. Thomason, 146 Tex. 37, 202 S.W.2d 212 (1947), the court said:

'. . . Thus the burden is on every person contesting a will . . . to allege, and, if required, to prove, that he has some legally ascertained pecuniary interest, real or prospective, absolute or contingent, which will be impaired . . ., or in some manner materially affected, by the probate of the will . . .'

“The case of Chalmers v. Gumm, 137 Tex. 467, 154 S.W.2d 640 (1947), was an action to set aside the probate of a will by one alleging himself to be a 'nephew and heir at law' of the testator. At the trial in the district court the jury found in answer to the one special issue submitted that the testator was lacking in testamentary capacity on the date the will was executed. The trial court granted a judgment non obstante veredicto on the ground that there was no evidence that the contestant had the requisite interest in the estate to authorize him to prosecute the suit. In reversing the case and ordering it remanded to the trial court, the Supreme Court said:

'Our conclusion is that the question of whether or not defendants in error are persons interested in the estate of Fred Erichson so as to be authorized to prosecute the proceeding, should have been raised in limine and before issue was joined on the merits of the case, and that the trial court erred in dismissing the contest on the motion for judgment non obstante veredicto.'

“Merely alleging the existence of a prior lost will is not sufficient to show a 'legally ascertained pecuniary interest, real or prospective, absolute or contingent' which will be materially affected by the probate of a later will. The word 'contingent', when applied to a devise, bequest, or other legal right or interest, implies that no present interest exists, and that whether such interest or right ever will exist depends upon a future uncertain event. Black’s Law Dictionary (4th Ed.). To show an interest in an estate by reason of a prior will, it is not necessary to develop facts necessary to entitle it to probate. Baptist Foundation of Texas v. Buchanan,291 S.W.2d 464 (Tex.Civ.App .--Dallas 1956, ref. n.r.e.). However it is necessary that the contestant show that he was named as a beneficiary in a testamentary instrument executed with the formalities required by law, that is, a will.

“The refusal of the trial court, on timely demand, to require the contestants of the probate of a will to support by evidence their allegations of interest in an estate is error, which on appeal will require a reversal of a judgment adverse to the proponent of a will. Abrams v. Ross' Estate, 250 S.W. 1019 (Tex.Com.App.1923).

“However it does not follow that the district court, or this court, should issue a writ of mandamus to forestall an error in procedure on the part of the trial court.

'. . . Relator has an adequate remedy by appeal, and writs of mandamus will not issue to forestall or to correct errors of a trial court committed in the course of a trial when the parties have an adequate remedy by appeal . . .

'This case presents an unusual fact situation in which the normal alternative to a declaration of mistrial . . . the entry of judgment . . . is not to follow immediately but only after trial of the damage issue. That procedure will entail some delay and additional costs in correcting the error by appeal, but that there may be some delay in getting questions decided through the appellate process, or that court costs may thereby be increased, will not justify intervention by appellate courts through the extraordinary writ of mandamus. Interference is justified only when parties stand to lose their substantial rights. Womack v. Berry, (156 Tex. 44,) 291 S.W.2d 677.' Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648 (1958).

“Relator has an absolute right of appeal from the probate court to the district court, where he will receive a trial de novo. If the probate court fails to allow a proper trial in limine on the issue of interest on part of the contestant, the error can be corrected by the district court. He does not stand to lose his ’substantial rights'. The district court did not err in refusing to issue its writ of mandamus.

“Affirmed.”

Application of the “Dead Man’s Statute” to testimony has often been an issue. in cases involving missing Wills. The concepts apply to interlined Will litigation. Because the concepts apply, and because there are an abundance of missing Will cases, and a relative handful of interlined Will cases, in order to balance the courses and cover this issue which applies to both courses, this course text “borrows” several cases on the Dead Man’s Statute from the missing Will course. In addition to the Dead Man’s Statute concepts in a standard interlined or missing Will case, the issue can arise in a Joint Wills or Contractual Wills setting.[13] The key for lawyers is to be aware of the the need to analyze which evidence is admissible in missing will litigation, given the facts, statutes, and rules that apply at that time.

* * * * *

Who destroyed a missing Contractual or Joint Will? Two people may each have wills combined in the same document as joint wills, or as separate documents subjected to a contract. That can result in some interesting missing will situations.

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

“This is an appeal from the probate court’s judgment denying an application to probate the purported will of S.L. Meek, Sr., which was not produced in court.

“S.L. Meek, Sr. (Sanford Meek) and Rosemary Meek were husband and wife. Appellant Pearce is the daughter of Rosemary Meek by a former marriage. Appellee, S.L. Meek, Jr., is the son of Sanford Meek by a former marriage. Rosemary Meek died September 7, 1971. Shortly thereafter her will was admitted to probate leaving all of her property to Sanford Meek "in fee simple to manage, sell or dispose of as he may wish or see proper." However, her will contained the further provision that "any property, both real and personal, that remains in his possession of my estate, shall pass to and vest in fee simple in my beloved daughter, Bobbie Lynette Pearce." In 1972, Sanford Meek married Maude Stanfield and lived until 1986. During the last two years of his life, Sanford Meek was the ward of S.L. Jr. who had possession of all his property including his safety deposit box and its contents.

“At his death, Sanford Meek owned virtually all the property that he and Rosemary had acquired, including that which he had received under her will.

“No will of Sanford Meek has been found. Appellant Pearce had not seen Sanford Meek for approximately fourteen years prior to his death. Appellee S.L. Jr. testified that he had diligently searched but had been unable to find a will belonging to his father.

“Pearce testified that her mother had told her that she and Sanford Meek had both made wills leaving their property to Pearce upon the death of the last of them to die. Pearce also testified that after Rosemary Meek’s death, Sanford Meek showed her his will which was identical to the recently probated will of Rosemary Meek, that it was prepared by the same insurance agent, witnessed by the same persons, and executed at the same time.

“Faye Stanfield is the daughter-in-law of Sanford Meek’s last wife, Maude Stanfield Meek, and, she said, a weekly visitor in the Meek home. She testified that during one of her visits Maude Meek told her that Sanford Meek had had a will, but that "they [Maude and Sanford] had a fuss and she tore up, they tore up the will."

“It is appellant Pearce’s position that the last will of Sanford Meek was executed together with Rosemary’s will in conformity with a contract between them to leave their property to Pearce; that after Rosemary’s death and Sanford Meek’s acceptance of the benefits under her will, Sanford Meek lacked the power to revoke his will. Appellee S.L. Jr. contends that his father died intestate and that as his sole heir, he is entitled to all of his father’s property.

“The trial court found, inter alia, that Sanford Meek and Rosemary Meek executed "reciprocal and mutual wills" 1[14] on January 21, 1971; that the will was not produced in court because it had been destroyed with the intention of revoking it; that although the wills were "reciprocal and mutual," they were not contractual; and concluded that Sanford Meek therefore died intestate.

“In her first point of error, Pearce contends that the "trial court erred in holding that S.L. Meek, Sr. [Sanford Meek] died intestate because the will of S.L. Meek, Sr., was destroyed with the intention of revoking same."

“Appellant argues that, although Faye Stanfield testified that a will was destroyed during a fuss, there is nothing in the record to show that it was the will in question nor is there any evidence that the testator Sanford Meek destroyed the will or had it done under his direction and in his presence as required by Tex.Prob.Code § 63.

“Faye Stanfield testified that Maude had said "she tore up, they tore up the will" during a family argument. The trial obviously and reasonably inferred from this that the testator was present when the will was destroyed and participated in its destruction. There is a rebuttable presumption that one who destroys his will intended to revoke it. Combs v. Howard, 131 S.W.2d 206 (Tex.Civ.App.--Fort Worth 1939, no writ). The appellant Pearce is the sole witness who had seen the will and testified to its contents. It was in Sanford Meek’s possession at the time. When a will is in the possession of the testator when last seen, failure to produce the will after the testator’s death raises the presumption that the testator destroyed the will with the intention of revoking it, and the burden is cast on the proponent to prove the contrary. Pipkin v. Dezendorf, 618 S.W.2d 924, 925 (Tex.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.). The proponent, appellant in this case, has failed to carry that burden. The first point is overruled.

“In her second and third points of error, appellant maintains that "[t]he Trial Court erred in holding that the Wills of S.L. Meek, Sr. [Sanford Meek] and Rosemary Meek were not contractual" and "in holding that S.L. Meek died intestate and refusing to admit [his] Will ... to probate." From her argument, it is clear that Pearce attacks the trial court’s failure to find the wills were contractual as being against the great weight or preponderance of the evidence.

“Testamentary contracts are viewed with extreme caution by the courts. They must be established by full and satisfactory proof, and no inferences or presumptions will be indulged in their favor. Magids v. American Title Insurance Co., Miami, Fla., 473 S.W.2d 460, 464 (Tex.1971). The burden of establishing a contract is on the party asserting its existence. Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165 (1946).

“Appellant Pearce argues that the will of Rosemary and the lost will of Sanford Meek were identical in form and substance, each leaving appellant whatever remained of his or her property at the death of the spouse; that they were prepared by the same insurance agent, executed at the same time, and witnessed by the same people. This, coupled with the extrinsic evidence of their intention provided by Pearce’s testimony, provides, in her view, overwhelming proof that the wills were contractual.

“Wills may of course contain specific language stating they are contractual. Contractual wills executed on or after September 1, 1979, may only be established by explicit provisions in the wills stating that a contract exists and reciting the terms of the contract. Tex.Prob.Code § 59A. In considering pre-1979 wills containing no such explicit contractual language, the courts have sometimes inferred a testamentary contract from the dispositive provisions of the will in question. But standing alone the fact that both spouses execute similar wills does not make them contractual even when the wills contain recitals that the other spouse is executing a similar will. Pullen v. Russ, 226 S.W.2d 876, 879 (Tex.Civ.App.--Fort Worth 1950, writ ref'd n.r.e.). However, a similarity in their wording and their execution at the same time before the same witnesses are facts which may be considered along with other evidence in determining whether the wills were executed pursuant to an agreement. Id.

“In inferring the existence of a testamentary contract from the terms of the will itself, absent express contractual language, the courts have generally relied on two principal considerations. First, and most important, there must be an apparent intent on the part of each testator to treat the balance remaining from the estate of the first to die and the estate of the last to die as a single estate, and to provide for the disposition of the combined estates remaining on hand at the death of the last to die. See Nye v. Bradford, 193 S.W.2d at 168; Pullen v. Russ, 226 S.W.2d at 879; Fisher v. Capp, 597 S.W.2d 393, 399 (Tex.Civ.App.--Amarillo 1980, writ ref'd n.r.e.).

“Of less importance but sometimes persuasive is the manner of the distribution of the combined estate remaining at the death of the survivor. See, e.g., Nye v. Bradford, 193 S.W.2d at 168; Todd v. Cartwright, 684 S.W.2d 154, 157 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.); Knolle v. Hunt, 551 S.W.2d 755, 760 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.); Dickerson v. Yarbrough, 212 S.W.2d 975 (Tex.Civ.App.--Dallas 1948).

“Neither Rosemary Meek’s will nor the reciprocal provisions of the purported last will of Sanford Meek demonstrate an intent to treat the estate of both parties as one, nor does either will provide for the disposition of the combined estates at the death of the last to die. Rosemary Meek’s will leaves to Sanford Meek "... all of the property ... I may die seized and possessed of ...," "the remainder of all the property I may now own or be interested in." She disposed of the remainder left at Sanford Meek’s death, providing that Pearce shall take in fee simple whatever remains in Sanford Meek’s possession at his death of my estate. Pearce testified that the wills contained identical reciprocal provisions so presumably Sanford Meek’s will is similarly limited. Neither will mentions the other. Neither will attempts to affect the property of the surviving spouse nor does either put the survivor to an election of whether to take under the will.

“Similar identical reciprocal wills prepared by the same person and executed at the same time were considered by the Supreme Court in Magids v. American Title Insurance Co., Miami, Fla., 473 S.W.2d 460 (Tex.1971). The Magids court concluded that, standing alone, the terms of the wills at issue did not prove a testamentary contract.

“The Meek wills do not specify a manner of distribution that tends to prove an agreement intended to bind the survivor. The probated will of Rosemary Meek provides a very ordinary disposition of her estate leaving her husband her property with whatever remained of her property at his death going to her only child. The wills dispose of only that "of which I die seized and possessed." There are no specific devises or bequests. There was no attempt to preserve an equal distribution to each testator’s children from prior marriages as was the case in Todd v. Cartwright. We conclude that the terms of the Meek wills do not prove they are contractual.

“Appellant also testified that the same person prepared the wills and that they were executed at the same time before the same witnesses. This is evidence the trial court may consider in determining whether the wills are contractual. If, as the trial court held, two reciprocal wills were made, it seems almost undeniable that the testators agreed to make them. But a mere agreement to make wills does not necessarily demonstrate the testators' intent to enter an irrevocable compact affecting both their estates. Kastrin v. Janke, 432 S.W.2d 539, 542 (Tex.Civ.App.1968).

“The clear weight of authority, and certainly the sounder view, is that the mere presence of either joint or mutual wills does not raise any presumptions that they were executed in pursuance of a contract. Nor is this rule altered by evidence that the parties had 'agreed' to the making of such wills. 10 E. Bailey, Texas Law of Wills § 435 n. 9 (Texas Practice 1968) (quoting Sparks,[15] Contracts to Make Wills 27 (1956)).

“Pearce’s testimony provides the only evidence of the execution and contents of the purported lost will. Her testimony also supplies the only evidence of the oral declarations of Rosemary and Sanford Meek concerning their wills. She testified that, while her mother was in the hospital, her mother told her that she and Sanford Meek had made wills leaving everything to her. Sanford Meek was present, she said, when Rosemary told her about the wills and he said nothing. Shortly before her mother’s death Sanford allowed her to read the wills, commenting that because his son "didn’t care enough about him to come to see him when he was alive, he didn’t want to leave him his property when he was dead." It is only from this reading of his will in the summer of 1971 that she was able to testify to the will’s reciprocal provisions. The year after Rosemary died Pearce asked him where his will was and he replied "[i]t’s right in there in the other room just like it’s always been and I don’t intend to change it." She never saw Sanford Meek during the fourteen remaining years of his life.

“Although Pearce argues that this extrinsic evidence provides overwhelming evidence that the wills were contractual, we disagree. Rosemary and Sanford Meek’s oral statements about their wills do no more than confirm what would be readily apparent from the wills themselves. During a time when he was estranged from his son and while his wife was facing an untimely death, Sanford Meek executed a will leaving all of his property to his dying wife’s only daughter. His statement that "he didn’t intend to change it" in fact implies that he believed he could change it if he wanted to. Nothing in their statements indicates that either testator understood that they had irrevocably undertaken to bind the survivor to leave Pearce all of his or her property.

“Finally, appellant argues that it is inconceivable that Rosemary Meek would have executed a will leaving her daughter entirely unprovided for at her husband’s death, with all her property likely to pass by the law of intestacy to her husband’s son of a prior marriage. The construction of Rosemary Meek’s will is not before us and it is not necessary to this opinion that we determine the character of the estates given to Sanford Meek or appellant by Rosemary’s will. However, see Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876 (1948).

“Appellant Pearce’s testimony was the only evidence of the execution and contents of Sanford Meek’s will and of the testators' oral statements regarding their wills. The evidence of a party or an interested witness, though not contradicted by other witnesses, does no more than raise a fact issue and cannot be given conclusive effect unless it is clear, direct, positive, free of circumstances that cast suspicion upon it, and easily controverted if untrue. Southland Life Ins. Co. v. Aetna Casualty and Surety Co., 366 S.W.2d 245 (Tex.Civ.App.--Fort Worth 1963, writ ref'd n.r.e.). The insurance agent who prepared the wills is dead, as are the only other persons known to be present at their execution, and every other person, except the appellant, who might have known the contents of Sanford Meek’s will or testified to the presence or absence of an intent on the part of Rosemary and Sanford Meek to bind the survivor to leave all of his or her property to appellant. It would have been utterly impossible for the appellee to have offered testimony directly controverting that of appellant Pearce. The trier of facts may reject a party’s testimony in whole or in part. Calvin v. Koltermann, Inc. v. Underream Piling Co., 563 S.W.2d 950 (Tex.Civ.App.--San Antonio 1977, writ ref'd n.r.e.). And the findings of the trier of facts 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. Lane v. Brown, 312 S.W.2d 735 (Tex.Civ.App.--Dallas 1958, writ ref'd n.r.e.).

“In considering a factual insufficiency (or against the great weight) point of error, the reviewing court must consider and weigh all of the evidence and set aside the finding and remand the cause for new trial only if it concludes that it is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

“Appellant bore the burden of establishing the existence of a testamentary contract between Rosemary and Sanford Meek. Nye v. Bradford, 193 S.W.2d at 167. We conclude, as did the Supreme Court in the Magids case involving separate wills with no contractual intent evident in either will, that the appellant simply failed to carry the burden of proof.

“The trial court’s finding that the wills are not contractual is not so against the great weight of the evidence as to be manifestly unjust. The trial court’s conclusion that Sanford Meek died intestate is supported by the findings.”

* * * * *

In Tinney, the widow attempted to probate a missing joint will, which was both her will and the will of her late husband.

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

“This is a 'lost' will case.[16] The decedent is W. I. Tinney, who died February 19, 1959, while domiciled in Cherokee, San Saba County. Surviving him were his wife, Mrs. Frankie Tinney, their four children, Mrs. Cora B. Carpenter, Clifton Arthur Tinney, D. A. (Dorr) Tinney and Thomas Milton Tinney.

“On June 18, 1959, Mrs. Frankie Tinney filed an application in the County Court of San Saba County to probate the will of her husband in which she alleged:

'That said will was lost or destroyed after the same was duly executed by deceased and your petitioner.

'5. That the contents of said will, as far as known are as follows, to wit; that said will was signed by the deceased and your petitioner all of the property of each of them, real, personal and mixed was left to the survivor, and that under said will, the survivor, was to be executor or executrix as the case might be, and to act in that capacity without bond.

'6. That said will was dated on the 15th day of Dec., 1955, and was executed in the presence of Johnson Kuykendall and his wife, Cloma Kuykendall, credible witnesses above the age of fourteen years of age who subscribed their names thereto as witnesses in the presence of said testator.'

“This will was probated by the County Court on June 29, 1959, in an uncontested proceeding.

“The probate of such will was based upon, as the record shows, the testimony of the subscribing witnesses, which is formal and does not pertain to the contents of the will, and affidavits of Mrs. Frankie Tinney and R. E. Gray. We quote first from the affidavit of Mrs. Tinney:

'That after said will was signed by affiant and her husband, W. I. Tinney, and the attesting witnesses as aforesaid the will was placed in a lock box in the City National Bank of San Saba, Texas, and that after the death of the said W. I. Tinney this affiant had the box opened and said will was not included therein and that the same was stolen, misplaced or lost. That affiant has made a diligent search for the same and said will cannot be found. That in said lock box was the empty envelope addressed to affiant from R. E. Gray an attorney at law of San Saba, Texas, and affiant further says that the last time she saw such will it was in said envelope.

'That said will was signed by affiant and the said W. I. Tinney, deceased, and provided that the survivor would be vested and have title to all of the property of the deceased, real, personal and mixed, and that said survivor be appointed testator or testatrix as the case might be, and to serve in such capacity without bond.'

From the affidavit of R. E. Gray, we quote:

'that on or about the 13th day of Dec., 1955, he drew a mutual will for W. I. Tinney, and wife, Frankie Tinney and forwarded the same to them at Cherokee, Texas, and at the time the said will was drawn that both testator and testatrix were over twenty one years of age and were of sound mind. That said will provided for the survivor to have all of the property, real, personal and mixed and that said survivor be appointed executor or executrix as the case might be and to serve in such capacity without bond.'

“On June 24, 1961, Cora B. Carpenter filed a contest in the County Court of the will of W. I. Tinney, previously probated by it, alleging that the will as probated was not the will of W. I. Tinney, and in the alternative that such will had been revoked by W. I. Tinney prior to his death. This application is not in the record.

“On January 18, 1962, the County Court entered a judgment setting aside and canceling the order of June 29, 1959, by which the will of W. I. Tinney was admitted to probate, finding that such will had been revoked prior to the death of W. I. Tinney. An appeal from this judgment was taken by Cora B. Carpenter to the District Court of San Saba County.

“In the District Court Cora B. Carpenter alleged that the will of W. I. Tinney was, 'a joint will signed by W. I. Tinney and Frances or Frankie Tinney; that it provided that at the death of either of them, all of their property should go to the survivor for life, and that at the death of the survivor, the said property should be distributed among Cora Carpenter, Thomas Milton Tinney, D. A. Tinney, and Clifton A. Tinney, share and share alike, * * *'

“She also alleged that such 'will cannot be produced for the reason that same has been lost.'

“In addition this allegation of estoppel was made:

'Your petitioners would further show the Court that the heirs, devisees and executor of Frances Tinney are estopped to make any claim adverse from or differing from the provisions of the will of December 15, 1955, by virtue of the fact that Frances Tinney in Cause No. 1570, In The Estate of W. I. Tinney, In The County Court of San Saba County, Texas, swore that said will had not been revoked insofar as she knew and that same had been stolen, misplaced or lost.'

“In the alternative Mrs. Carpenter alleged that the will of W. I. Tinney 'was revoked prior to his death.' She prayed that the will of W. I. Tinney, as she alleged it to be, be probated.

“D. A. Tinney and Thomas Milton Tinney answered the petition of Mrs. Carpenter by alleging that W. I. Tinney revoked the will prior to his death, and in the alternative, that the will originally probated by the County Court was the will of W. I. Tinney.

“This cause was tried to a jury which found: (a) That W. I. Tinney did not destroy his will with intent to revoke it. (b) That such will provided that upon the death of the survivor of W. I. and Frankie Tinney their properties should go to their four children, share and share alike.

“This verdict was received and judgment consistent with it was rendered.

“The primary contention of appellant D. A. Tinney is that there is no evidence to sustain the finding of the jury that W. I. Tinney did not destroy his will with revocatory intent. We agree with appellant.

“The law to be applied is correctly stated by the Amarillo Court of Civil Appeals in Bailey v. Bailey, 171 S.W.2d 162, 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.'

“Revocation of a will by destruction of it by the testator is expressly authorized by statute. Sec. 63, Texas Probate Code, V.A.C.S.

“Mr. Clay Kuykendall testified by deposition that he was an officer of the City National Bank of San Saba; that he knew W. I. Tinney and that at the time of his death he had a safe deposit box in the bank. He testified that Mrs. Frankie Tinney also had access to the deposit box. The bank records show that Mrs. Frankie Tinney signed a card requesting admission to the deposit box on June 21, 1957, October 31, 1958 and on April 18, 1959. These records also show that W. I. Tinney entered the deposit box on July 17, 1957.

“This witness testified that he did not know whether the will in question had been deposited in the bank box. He did state that Mrs. Frankie Tinney 'came in and told me the will was gone, and asked me what became of it. I was not able to tell her.'

“Mrs. Frankie Tinney was deceased at the time of this trial. Her testimony given in the probate court was admitted in evidence, most of which has been set out above. She testified that the will, after its execution, was placed in the bank lock box and that after the death of Mr. Tinney she opened the lock box and the will was not in it. She further testified that after diligent search such will could not be found and that it was ’stolen, misplaced or lost.'

“The last time Mrs. Tinney saw this will it was in the empty envelope which was addressed to her from R. E. Gray, the empty envelope being found in the bank lock box.

“The testimony of Mrs. Tinney precludes any inference that she removed the will from the bank box or that she lost or destroyed it. Since Mrs. Tinney testified that the will left everything to her, it would have been against her interest to destroy it. No presumption that she destroyed it can thus be indulged.

“The will, as Mrs. Tinney testified, was last seen in the bank box in the envelope, the bank box being under the control of Mr. Tinney and herself and accessible to them. It is our opinion that the presumption arising from these circumstances, and applicable only to Mr. Tinney,[17] is not overcome by the statement of Mrs. Tinney that the will was ’stolen, misplaced, or lost.' This statement is in the alternative and does not constitute a positive declaration that any one of the events was true. It was obviously based upon a lack of knowledge of the witness as to the fate of the will. This is fortified by her inquiry of Banker Kuykendall as to the whereabouts of the will. This inquiry would certainly not have been made had Mrs. Tinney known what happened to the will.

“In American Jurisprudence 2d, Vol. 3, p. 401, it is stated that, '* * * an affidavit which alleges alternatively that one or another ground exists does not definitely allege the existence of either ground * * *'

“The statement that a document was misplaced or lost carries the same connotation, but when it is coupled with the statement that it was stolen, it is obvious that the declarant is guessing and is not speaking with knowledge.[18]

“It is our opinion also that the doctrine of judicial estoppel is inapplicable to appellants, and is insufficiently supported.

“Mrs. Tinney was a mere witness in the probate proceedings. She was interested in the probate of the will, but she had no rights under it until the will was probated. She did not then speak for or represent anyone but herself. Her statements, or testimony, could not judicially estop the children of the decedent. They are not here claiming under their mother. They were, of course, bound by the probate judgment until it was vacated, because they were parties to the proceedings.

“The insufficiency of the affidavit has been discussed. In our opinion it is not a sworn positive statement of fact or made with the knowledge sufficient to form the basis of judicial estoppel. See West v. Carpenter, 366 S.W.2d 826, Amarillo Civil Appeals, and authorities therein cited, also see 22 Tex.Jur.2d, Estoppel, Sec. 20, p. 691.

“The judgment of the Trial Court is reversed and judgment is here rendered denying probate of the proffered will of W. I. Tinney, deceased, dated December 15, 1955.

Reversed and rendered.

Holographic Missing Wills

* * * * *

Holographic Missing Wills combine the unique issues related to each. McClesky involves the evidence required in a missing holographic will case.

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

“This is a suit brought by Rose McClusky, joined pro forma by her husband W. O. McClusky, in the Probate Court of Dallas County, Texas, against Delmar Owens, administrator of the estate of W. J. Owens, deceased and all heirs at law of the said W. J. Owens, to set aside the probation of a will dated April 4, 1945 and a codicil thereto dated April 15, 1948, duly executed by the said W. J. Owens; and to probate a propounded lost holographic will dated January 15, 1949.

“The aforesaid will of April 4, 1945 and codicil of April 15, 1948 were admitted to probate September 20, 1949, and Delmar Owens appointed administrator of the testator’s estate with the will annexed. The probated will and codicil are as follows:

“The Will

'Dallas, Texas. April 4, 1945. I. W. J. Owens, Devise and Bequeath to my Brothers M. B. and R. B. Owens of Albany Clinton Co. Ky. all of my Real and Personal Property, after all of my just and legal Debts are paid, and my Grave are marked not to cost to exceed $300.00 Three Hundred Dollars. M. B. and R. B. Owens to act as Administrator jointly and separately, or appoint a Substitute or to act in their place and stead if they so choose. Whosoever is Administrator of my Estate is to serve without Bond. This my first and only Will. Signed, April 4, 1945. W. J. Owens. Witnesses: Hugh Herod A. W. Minyard.

Signed in the presence of W. J. Owens and in the presence of each other.'

“The Codicil

'April 15, 1948. W. J. Owens Brothers & Sisters. Shall Shair Equally to my Estate at my Death. Brothers Martin B. Owens 'Reubin B. Owens, 'Claude E. Owens, Dead. 2-H.L Sisters Mollie Wray, Dead, 4-H L 'Victory Stewart, Dead 2 H.L. 'Minnie E. Smith, Dead 1-H.L 'Elizibeth J. Williams, Dead, 2-H-L All of my Real and Personal Property. W. J. Owens All of Albany Clinton Co. Ky.'

“The propounded subsequent lost holographic will of the said W. J. Owens is alleged to have been executed on or about January 15, 1949 and because of its having been fraudulently taken from the possession of the said W. J. Owens at a time when he was seriously ill by Delmar Owens, it was secreted or destroyed to prevent the said Rose McClusky from securing her beneficiary share in the testator’s estate as per the holographic will.

“On evidence submitted to the Probate Court to establish the lost holographic will of W. J. Owens, deceased,-its execution and the reasons why said will cannot be produced in court, the Probate Court refused to set aside the probation of the will and codicil in evidence, admittedly executed by the said W. J. Owens; denied probate of the alleged lost holographic will, resulting in appeal duly made to the District Court of Dallas County; and on trial de novo to a jury, on motion of the respondent, Delmar Owens, Administrator, the District Court peremptorily instructed a verdict against the relators, proponents of the holographic will, and entered judgment in favor of the respondents affirming the action of the probate court; refusing to set aside the probation of the will and codicil and denying probation of the alleged lost holographic will. The petitioners, Rose McClusky and husband W. O. McClusky, duly appealed, assigning errors to the action of the trial court to the effect that the evidence under the substantial evidence rule was of such probative force of the existence of facts sought to be established, in that the holographic will was executed by W. J. Owens; that the holographic will had never been revoked by the testator, and that it had been fraudulently taken from the possession of the testator; hence the court erred in sustaining respondent’s motion, peremptorily instructing the jury against the probative issues of fact to probate the holographic will; and, further, to the action of the court in not allowing Rose McClusky to testify the detail regarding opening of a trunk belonging to the deceased in the presence of Delmar Owens some ten days before the death of the said W. J. Owens while he was in the hospital and as more fully hereinafter related.

“The purported holographic will and its loss are related by witness as follows:

“Mr. Leonard Samuel Hatter testified that he had been a nurse for more than thirty years; that he met the deceased in December 1948 at the East Dallas Hospital and went with the deceased to his home in January 1949 as his nurse, and took care of him through a spell of illness; that Mrs. Rose McClusky often visited Mr. Owens and called on him practically every day, and on days she did not call, Mr. Owens would call her, she cooked for and brought Mr. Owens his meals, sometimes his clothing; and that none of the other relatives of Mr. Owens ever came to see him, except his first cousin, Delmar Owens, who was also a first cousin to Mrs. Rose McClusky. Mr. Owens was especially fond of Mrs. Rose McClusky and expressed appreciation for what she had done for him. He further testified that on January 15, 1949 he saw Mr. W. J. Owens write a will. It was written wholly by him in his own handwriting; he wrote the will in bed, dated January 15, 1949, and in it Mr. Owens stated: 'I hereby will Mrs. Rose McClusky my home and the furnishings that are in it, and the rest of my estate shall be divided share and share alike between Mrs. Rose McClusky and my brothers, Reubin and Martin Owens.' He also stated in the will that Mrs. Rose McClusky was to be administrator. It was written and signed by W. J. Owens, or Will Owens, in the presence of the witness, and after Mr. Owens wrote the will, he (Mr. Hatter) read the will,-because Mr. Owens handed it to him and asked him to read it, and said 'That is what he wanted and the way he wanted it.' After reading the will, Mr. Hatter said that he unlocked Mr. Owens' trunk, and a tin box in the trunk, put the will in the tin box, and after putting it in the box, relocked the box and trunk, all in the presence of Mr. Owens.

“Mr. Louis M. R. Smith testified that he was a close friend and neighbor of Mr. W. J. Owens and had numerous conversations with him in reference to his family affairs and relatives. He was especially found of his cousin, Mrs. Rose McClusky, and expressed the highest appreciation of all she had done for him; that 'Cousin Rose,' as he affectionately called her, was the only one of his relatives that came around him or cared anything about him. On June or July 1949, Mr. Owens told him that Rose McClusky was so good to him and that he appreciated her greatly for what she was doing for him, and that he certainly wanted 'to take care of her as far as some of his property was concerned'; that he knew the deceased wished her to be taken care of in the final settlement of his estate. Mr. Smith further testified that some four to six days before Mr. Owens was taken to the hospital and just prior to his death, in September 1949, Mr. Owens gave him some keys for unlocking and opening of his trunk and he showed him where he kept his business papers; that when he put the key in the lock of the trunk he had no trouble unlocking it; it unlocked readily; it locked very easily, and after he unlocked the trunk he saw a tin box inside the trunk; it was like a fishing tackle box with a catch that closed over a hasp; it was about three to five inches deep.

“Mr. Aramita Bird Gee, a hospital nurse who was Mr. Owens' attendant before and at the time of his death and had been nursing Mr. Owens for about six weeks before his death, testified that during the time Mr. Owens was in the hospital he heard Mr. Owens say that Rose McClusky 'was the only person who was kind to him in his illness and his old age, and he was going to see that she was well cared for when he was put away.' That three or four days before his death Mrs. Rose McClusky and a young man whom witness did not know, came to the hospital to see Mr. Owens and at that time Mr. Owens gave Mrs. McClusky keys to his trunk and told her in the presence of the young man, 'If anything happened to him for her to go in there and see those things were well taken care of and that she knew more about his business than anyone else'; that Mr. Owens said something at that time about 'a will written recently, he said about two or three weeks-he-had a little will where she was taken care of, for her not to worry about the expenses.'

“Mr. James A. McClusky, nephew of W. O. McClusky (husband of Rose McClusky), testified to Mr. Owens' fondness for McClusky’s wife and that Mr. Owens said many times in his presence 'that he thought more of Rose McClusky than any of his kinfolks'; that he never had seen Delmar Owens until this illness. He further testified that on Thursday night, September 1, 1949, three days before Mr. Owens died, he (the witness) and Rose McClusky went to the hospital to see Mr. Owens and when they went into his room, Rose offered to give him the keys to his trunk and as she did so, Mr. Owens said, 'No, you keep the keys in case anything happens to me, you go in my trunk, in a little tin box that is locked, one of these keys will fit it, you will find a will in there that will take care of you.' Rose McClusky then took the keys that the deceased gave back to her.

“Joseph A. McClusky also testified that on Sunday night September 4, 1949, after they learned that Mr. Owens had died, he and Rose McClusky went to the home of the deceased where several other persons had already gathered and that Mrs. McClusky put the key that the deceased had given her in the lock of the trunk and attemped to turn the key to open the trunk, but that she was unable to turn the key, the lock would not operate, she could not open the lid to the trunk. Being unable to unlock the trunk, she then gave him (the witness) the keys and in like manner he tried to unlock the trunk, but being unable to do so because the tumblers in the lock were jammed, the tumblers would not let the key turn. He was compelled to get a pair of pliers and a screw driver to prize the trunk open, and after opening the trunk he found that it had been tampered with, the little plate that the tumblers fitted into-the slot-was damaged to where the tumblers would not work when the key was inserted.

“Mrs. Rose McClusky, the proponent of the holographic will, after relating her relationship and her close association with the deceased, testified over respondent’s objection that during Mr. Owens' last illness and about ten days before his death she had a conversation with Delmar Owens at the hospital and also at the home of Mr. Owens in the presence of Mr. Ramsey and Delmar’s sister. In that conversation she testified 'I asked Mr. Ramsey for the keys or if he knew where they were. The keys to the trunk. He said that he had the keys and in the presence of Mr. Delmar Owens Mr. Ramsey said 'He was glad to get them to me (her)'.' She further testified, after describing the lock in detail, that she inserted the key in the lock to open the trunk but could not open it, and being unable to unlock the trunk herself, she called upon Delmar, nephew of her husband, and several others present to see if they could open the trunk. None of them being able to unlock the trunk with the key, some one of them got a screw driver and some tools and prized the lock open. Before any effort was made to prize the trunk open, the lock evidenced scratches and scars where the key fits into the groove of the trunk, and after the trunk had been opened she observed the tin box in the trunk. This tin box had a little hasp and an eye loop over which the hasp fastened and where the lock attached to lock the box. There was no lock on the box when the trunk was opened. Mrs. McClusky further testified that Delmar, ten days before Mr. Owens' death and while Mr. Owens was in the hospital, was living at the home of Mr. Owens; that he was present when she got the keys and fitted the trunk key in the lock, and that he left the home about a week before the death of Mr. Owens, returning to his home in Ohio. That when she opened the tin box it contained no other will but the will of 1945 and the codicil of 1948. No other will was found.

“Delmar Owens, administrator under the probated will and codicil, was called by the petitioners under the adverse party rule. He testified that he was present on the occasion when Mr. Ramsey and his sister were present and saw Mr. Ramsey give Mrs. Rose McClusky some trunk keys; she asked for them and Mr. Ramsey gave them to her. That he was Mrs. McClusky put the keys in the trunk, saying, 'I want to see if they are the right keys.'

“We are of the opinion the evidence raises the probative issues involved. When a written will cannot be produced, lost or cannot be found, nevertheless it may be established and the provisions thereof be given effect by parol testimony of its execution and contents. A will lost or destroyed previous to the testator’s death, if not revoked, may be proved although not in direct terms authorized by statute. Tynan v. Paschal, 27 Tex. 286, 84 Am.Dec. 619. In the determination of the dispute as to whether the will was executed or whether it was lost, destroyed and cannot be found, he who seeks to establish the will and its loss or destruction assumes the burden of proof and the proof must be of sufficient probative value to satisfy the court or trier of facts that it cannot by any reasonable diligence be produced. The testimony of one credible witness who saw the testator execute the will, or read the will, or heard the testator read the will, in absence of contest or dispute to the contrary, may be sufficient to establish its execution and its contents, at least raise the issue. The authorities are practically in accord that where a will, which when lost was in the custody of the testator and after his death cannot be found, a presumption arises that it had been revoked by the testator. McElroy v. Phink, 97 Tex. 147, 76 S.W. 753, 77 S.W. 1025, reversing Tex.Civ.App., 74 S.W. 61. But where there is evidence to repel such presumption, it is not permissible for the trial judge to peremptorily instruct the jury against such evidence. The prima facie presumption of revocation, where there is evidence of the existence of the will and that the will was surreptitiously withdrawn from the possession of the testator, the presumption does not obtain.

“The judgment of the court below is reversed and cause remanded.

“We think that in a proceeding such as revealed by this record, supra, consideration must be given the testator’s statements tending to support the holographic will offered for probate and that it was not revoked by the testator. According to the statement of the testator at the hospital, and made a few days before his death, showing that he executed the holographic will 'to care for Rose McClusky' and that said will would be found, in the event something should happen to him, in a little tin box in his trunk, was at least sufficient to carry the dispute to the jury. There is positive testimony that W. J. Owens executed the alleged holographic will offered to probate; that it was deposited in the small tin box in the deceased’s trunk; and after his death the will could not be found. It may not be presumed under the facts and circumstances shown that the testator himself revoked the will. Thus its disappearance, in absence of evidence to the contrary, is sufficient to overcome any presumptive evidence that may be accorded to it having been revoked by the testator. Accordingly we sustain appellants' several points of error.”

[But, on the other hand, oops.....]

“On Motion for Rehearing

“The record in this case shows that only one witness testified as to the handwriting on the lost holographic will in question, to wit, one Leonard Hatter. Article 3344, V.A.C.S., applicable here, provides:

'A written will produced in court may be proved: * * * 4. If the will was wholly written by the testator, by two witnesses to his handwriting, which may be made by affidavit taken in open court and subscribed to by the witnesses, or by deposition. Acts 1876, p. 94; G.L. vol. 8, p. 930; Acts 1945, 49th Leg., p. 468, ch. 296, § 1.'

“Article 3345, V.A.C.S., provides:

'A written will which cannot be produced in court, may be proved in the same manner as provided in the preceding article, 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.'

“The court also shows that Leonard Hatter was the only person other than the testator who saw the will, read the will, or heard the will read.

“Under such record we were in error in our original opinion in holding that the will was properly proven.

“To require the proof necessary to probate a holographic will, would, and does in fact, make it impossible to prove the will under consideration. However, the wisdom of the rule is not for this Court. The Legislature having spoken as to the requirements, such requirements are necessary and the rule is binding on this Court and all other Courts before a will can be probated. The learned trial judge so held, and entered judgment denying probate of that will. In doing so, he followed the mandate of the law. His judgment probating the first will which was properly proven, and denying probate of the holographic will, was proper.

“Our former opinion reversing and remanding the trial court’s judgment was erroneous. We therefore grant the motion for rehearing, set aside our former order, and here now affirm the judgment of the trial court.

“Motion for rehearing granted, and judgment of trial court is affirmed.”

* * * * *

Halmicek involves the proof is required to probate a missing lost holographic will and the hearsay rule.

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

“This is a suit to set aside the probate of the holographic will of Roy Edward Halamicek, Sr., Deceased, on the ground that such will had been revoked by a later holographic will. Trial was to a jury. The judgment set aside the probated will. Fred Halamicek and Eddie Halamicek, defendants, have duly and timely perfected an appeal from that judgment.

“Roy Edward Halamicek, Sr., hereinafter referred to as 'decedent', died on April 19, 1972. He was survived by two natural sons, Roy Edward Halamicek, Jr. (the plaintiff), and Henry Irving Halamicek, and by an adopted daughter, Cindy Mabrey. They constituted his sole and only heirs at law. Fred Halamicek (a brother of the decedent) filed a holographic will of the decedent for probate shortly after the decedent’s death. That will, dated September 16, 1963, was duly admitted to probate by the County Court of Gonzales County, Texas, on May 8, 1972. Fred Halamicek qualified as Administrator with will annexed of the decedent’s estate.

“At the time the will was probated, both of decedent’s sons were minors. Roy Edward Halamicek, Jr., upon reaching his majority, brought identical suits in both the District Court and in the County Court (Gonzales County) to set aside the will that had been probated on May 8, 1972, as above stated. The District Court suit was filed on May 6, 1974 and the County Court suit was instituted on September 3, 1974. Fred Halamicek, Individually and as Administrator of the Estate of Roy Halamicek, Deceased, Eddie Halamicek, Henry Irving Halamicek, Cindy Mabrey and Marjorie Hensley were made defendants to the actions brought by the plaintiff.

“The defendants Cindy Mabrey and Henry Irving Halamicek, following the removal of his disabilities of minority, expressly adopted the allegations made by Roy Edward Halamicek, plaintiff, in his petition, and further prayed that the probated will be set aside. The defendant Marjorie Hensley, the ex-wife of the decedent and the mother of his two sons, disclaimed any interest in the subject matter of the suit.

“The plaintiff, among other allegations, alleged that the probate of the September 16, 1963 will should be set aside on the ground:

'. . . THAT said instrument dated September 16, 1963 had been revoked, either expressly or by implication, by the Decedent, Roy Halamicek, executing a subsequent inconsistent holographic instrument as his Last Will and Testament with like formalities which expressly and/or by implication revoked such instrument dated September 16, 1963.'

“The County Court suit was transferred to the District Court, where the causes were consolidated. Trial commenced on February 26, 1975. Special Issue No. 1 inquired:

'Do you find from a preponderance of the evidence that after 1963 Roy Halamicek, Sr. executed the instrument testified to by Lucille Herschap intending the same to be and constitute his last will and intending same to revoke all other wills?'

To which, the jury answered: 'We do'.

“The judgment, which was signed on May 23, 1975, in part, decreed:

'. . . that the probate of said 1963 will of the decedent, ROY HALAMICEK, in Cause No. 6096 on the probate docket of the County Court of Gonzales County, Texas, should be, and the same is hereby, SET ASIDE AND HELD FOR NAUGHT. It is further ORDERED, ADJUDGED AND DECREED that the said 1963 will has been revoked by the decedent, . . .'

“The defendants (appellants) assert in their first point of error that there is 'no evidence that the alleged revoking will was wholly in the handwriting of the decedent Roy Halamicek as pleaded by Appellee'. They contend in their fourth point that 'the judgment of the court should be reversed because the testimony of Lucille Herschap as to declarations of the decedent, Roy Halamicek, are insufficient to prove either the execution or contents of the alleged revoking will'.

“The plaintiff (appellee) contends 'the record in this case abounds with evidence by which the jury might reasonably infer the revoking will was wholly in the handwriting of the decedent', because: 1) the decedent made a prior holographic will in 1963; 2) in a discussion between decedent and Mr. W. T. Miller, an attorney, Miller told decedent to rewrite his will and include certain provisions therein; 3) the decedent telephoned Lucille Herschap and told her that he was making out his will, and later told her in person that he had executed his will; 4) the testimony of Lucille Herschap as to declarations of decedent; 5) the testimony of Mr. Roger Dreyer, an attorney, as to a statement made to him by decedent that he had something written up he wanted Dreyer to look over; 6) it can reasonably be inferred that decedent, as a result of his conversation with Miller, knew that anything but a wholly handwritten will had to be witnessed in order to be valid.

“Statutory requirements pertaining to revocation of wills in Texas are set out in our Probate Code as follows:

' § 63. Revocation of Wills

No will in writing, and no clause thereof or devise therein, shall be revoked, except by a subsequent will, codicil, or declaration in writing, executed with like formalities, or by the testator destroying or canceling the same, or causing it to be done in his presence. Acts 1955, 54th Leg., p. 88, ch. 55.'

“The statutory method of revoking a valid will is exclusive. Morgan v. Davenport, 60 Tex. 230 (1883); Pullen v. Russ, 209 S.W.2d 630 (Tex.Civ.App.--Amarillo 1948, writ ref'd n.r.e.); Aschenbeck v. Aschenbeck, 62 S.W.2d 326 (Tex.Civ.App.--Austin 1933, writ dism'd); Citizens First National Bank of Tyler v. Rushing, 433 S.W.2d 741 (Tex.Civ.App.--Tyler 1968, no writ).

“In order to establish revocation of a will by the execution of a subsequent will that either expressly or impliedly revokes the prior will, it must be shown by a preponderance of the evidence that the revoking will was executed with like formalities of the prior will. The term 'like formalities', as used in the statute, requires proof that the revoking instrument was Validly executed. Womack v. Woodson, 169 S.W.2d 786 (Tex.Civ.App.--Beaumont 1943, writ ref'd).

“Since this is a suit to annul the probate of a will already probated, the burden is cast upon the plaintiff to establish by a preponderance of the evidence 'the execution, attended by due formality and legal requirements, of a subsequent instrument, which either expressly or impliedly revoked the former will.' Richardson v. Ames, 2 S.W.2d 517 (Tex.Civ.App.--Eastland 1928, writ ref'd). See also, Chambers v. Winn, 137 Tex. 444, 154 S.W.2d 454 (Tex.Com.App.1941, opinion adopted); Boyd v. Frost Nat. Bank, 145 Tex. 206, 196 S.W.2d 497 (1946); Crane v. Pierce, 257 S.W.2d 510 (Tex.Civ.App.--Dallas 1953, writ ref'd); Ehrhardt v. Ehrhardt, 364 S.W.2d 471 (Tex.Civ.App.--Houston 1963, no writ).

“It is well settled rule in this case that while statements made by the decedent to the general effect that he had made a later will are admissible on the execution of a lost will, it is further well settled that such statements and declarations cannot within themselves, and standing alone, be of sufficient probative force to establish the fact that the alleged lost will was actually and validly executed by the decedent. Compton v. Dannenbauer, 120 Tex. 14, 35 S.W.2d 682 (1931); Tynan v. Paschal, 27 Tex. 286 (1863).

“The decedent was divorced from his wife Marjorie in 1963. Following the divorce, decedent’s two boys lived with their mother for about two years, when they went to live with their maternal grandmother. In 1966, the boys then went to live in the home of Mrs. Annie Halamicek, their paternal grandmother, in whose home the decedent also resided. They continued to live in her home until shortly after their father’s death. A close relationship existed between the decedent and his sons.

“On the date of his death and for many years prior thereto, the decedent and the defendant Fred Halamicek were partners in a business in Gonzales, Texas. On September 13, 1963, when the probated will was signed, the decedent owned considerable property in partnership with Fred and also in his own right. His net estate was in excess of $200,000.00. The defendants were the principal beneficiaries under the 1963 will, although in that will the sons of the decedent were devised a certain tract of land, which, at the time of decedent’s death, was apparently quite valuable.

“According to Mr. Roger Dreyer, about a year before the decedent’s death he had a conversation with the decedent, when the decedent told him: 'I have got something that I have written up that I want you to look over sometime'. There is no showing in the record that the decedent, at any time presented any writing to Mr. Dreyer for him 'to look over'.

“Mr. W. T. Miller testified, in substance, that the decedent, in 1967 or 1968, told him that 'he had a holographic will', and that he (Miller) advised the decedent of the 'danger of making a holographic will', and suggested that he 'let a lawyer look at it'. He further testified that he wrote out two paragraphs in his own handwriting, gave them to the decedent, and told him 'that at the very least he ought to have these two paragraphs' in his will. The paragraphs provided for the appointment of an executor without bond, and for an independent administration of the estate.

“The statement made to Dreyer to the effect that he had ’something written up' does not raise an inference that the document was wholly in the decedent’s handwriting, or that it was a revoking instrument, or that it was testamentary in character or nature. The account of the transaction between Miller and the decedent will not support an inference that the decedent thereafter executed a valid will holographic or otherwise, or revoked a prior will.

“The only witness who gave any testimony in support of the plaintiff’s claim of revocation of the probated will by a later holographic will was Mrs. Lucille Herschap. She testified that she was acquainted with the decedent during his lifetime, and that he first mentioned a will to her 'about '69 or '70', when he asked her to 'come down to the store', and told her 'that he was making out a will'. She did not comply with his request. Several nights later, the decedent, while at Mrs. Herschap’s home, said to her: 'I really have got my will fixed up for my boys. They are well taken care of' . She also testified that the decedent told her that he had executed a will, in which he 'had left everything for his boys and that he was leaving one dollar to his ex-wife, and Fred half of the store only'. She did not know 'when he actually finished the will'. She further testified that she had never seen any will of the decedent 'other than the one that was admitted to probate'.

“The alleged revoking instrument (holographic will) was not produced at the trial. No witness testified as to ever having seen such an instrument. There is no evidence that any such instrument was wholly in the handwriting of the decedent. There is neither pleading nor proof that the decedent signed a nonholographic will that was properly witnessed. The statements and declarations made by the decedent to Mrs. Herschap, standing alone, are not of sufficient probative force to establish the fact of execution of the alleged revoking will, or to even raise the issue of its execution. Those statements and declarations constituted nothing more than legal conclusions of the decedent that he had executed a will, which may have been altogether imperfect or erroneous. Those statements and declarations do not give rise to a reasonable inference that the alleged will was wholly in the handwriting of the decedent, or that he signed any such instrument.

“We have carefully examined the record. We have, as is required of us in disposing of 'no evidence' points, viewed the evidence in its most favorable light in support of the finding that the decedent 'executed the instrument testified to by Lucille Herschap', considering only the evidence and inferences which support the finding, and rejecting the evidence and inferences which are contrary to the finding. There is no evidence of probative force in the record that the decedent revoked the September 16, 1963 will be any of the methods prescribed by Tex.Prob.Code § 63. The defendants' first and fourth points are sustained.

“In view of our holding in this case, it is not necessary that we consider or dispose of defendants' remaining points of error.

“The judgment of the trial court is reversed, and judgment is here rendered that the instrument dated September 16, 1963, which was admitted to probate as the Last Will and Testament of Roy Halamicek, Deceased, by the County Court of Gonzales County, Texas, sitting in probate, has not been revoked, and that the holographic will of Roy Halamicek, Deceased, dated September 16, 1963, is the valid Last Will and Testament of the decedent.

“REVERSED AND RENDERED.”

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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] 1 On December 6, 1977, a jury trial commenced on the question of Hughes' domicile. A jury found Hughes to be domiciled in Texas and a judgment was entered accordingly. That judgment was appealed to this court but was transferred to the Court of Civil Appeals for the 10th Supreme Judicial District at Waco. Lummis then brought an interpleader action in federal court for the Western District of Texas to determine Hughes' domicile. Both pending appeals in State Court and Federal Court remain unresolved at the present time.

[3] 2 Specifically, HHMI claims that Andrews, Kurth’s representation of Lummis is contrary to Canons 4, 5, and 9, and the disciplinary rules and ethical considerations therein. Canon 4 states that "a lawyer should preserve the confidences and secrets of a client." Canon 5 states that "a lawyer should exercise independent professional judgment on behalf of a client." Canon 9 states that "a lawyer should avoid even the appearance of professional impropriety." State Bar of Texas, Rules and Code of Professional Responsibility art. XII, § 8.

[4] Teacher’s note. Stasburger got more under the prior will. He had the requisite “interest” in contesting the later purported will which gave him less. The court statements to the contrary later in this opinion are clearly erroneous.

[5] Teacher’s note. This is erroneous. A beneficiary of a prior will which is revoked by a purported subsequent will has an interest which allows the contest of the purported subsequent will. If the subsequent purported will is not valid, the prior will is not revoked. There is an “interest” in contesting the subsequent purported will in order to preserve the validity of the prior will.

[6] Teacher’s note. A person who is better off under the prior will may contest a purported subsequent will.

[7] Teacher’s note. Sometimes courts do not understand the issues raised by the parties. Sometimes the court misstates the issues. This issue seems so frivolous that one wonders if it the court’s statement of the issue is correct.

[8] The importance of his race is not explained by the court.

[9] Is the court suggesting that 80 year old people are incompetent, per se? The United States Supreme Court justices might disagree.

[10] Is this meaningful? If a person has “several” “serious” maladies” are they incompetent, per se? Do the maladies matter? Is a broken leg, combined with arthritis enough?

[11] 1 All sections cited refer to the Texas Probate Code.

[12] All references to section 5 are to Tex.Prob.Code.

[13] There seems to be no case of a joint Will interlined by only one testator and lost or destroyed by the other. Maybe it is yet to come.

[14] “1 Commentators have noted that in Texas cases, ‘confusion runs riot’ in the use of the terms ‘joint’ and ‘mutual.’ See, e.g., 10 E. Bailey, Texas Law of Wills § 435 N. 2 (Texas Practice 1968). The modern trend is to confine the application of ‘mutual’ to only those wills executed pursuant to a contract. Magids v. American Title Ins. Co., 473 S.W.2d 460, 464 (Tex.1971); Hickman v. Harrell, 211 S.W.2d 374, 379 (Tex.Civ.App.--Waco 1948), rev'd on other grounds, 147 Tex. 396, 215 S.W.2d 876 (1949). However, the trial court in this case obviously did not intend to so limit the use of ‘mutual,’ inasmuch as it found the wills to be ‘reciprocal and mutual’ but not ‘contractual.’”

[15] The teacher was privileged to study the issue under Professor Sparks at the Duke University School of Law School.

[16] Teacher’s note. See the court’s discussion of the word “lost” later in this opinion. Then see the result in this case. The court concludes that the Will was revoked by destruction. It was not “lost.” Yet here the court says that this is a “lost will” case. This is a clear example of the usage of the term “lost will” by Texas courts to describe a missing will which may or may not be lost. This is a misuse of the word “lost” but it is a common usage by Texas courts. Thus, it can be said that this case is a “lost will case” as Texas courts use that term even though the case does not involve a lost will, but does involve a revoked will which was not produced because it was revoked by destruction.

[17] 1 While not requisite to the validity of this presumption, the record here augments its verity by evidence showing that after the will was executed friction and discord of a serious nature developed between Mr. and Mrs. Tinney.

[18] Teacher’s note. In other words, lost and stolen are different concepts. Yet the court refers to this as a “lost will case.” See the first footnote to this case.