Texas -
Probate of Lost Wills (Advanced)
YouKnowItAll.com
CLE Provider
© 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.
* * * * *
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,<