Estate of Morris

Decision Date31 January 1979
Docket NumberNo. 8959,8959
Citation577 S.W.2d 748
CourtTexas Court of Appeals
PartiesESTATE of Margaret Jane MORRIS, Deceased.

Kolander & Hamilton (R. C. Hamilton), Amarillo, for appellee.

Underwood, Wilson, Sutton, Berry, Stein & Johnson (John Mozola), Amarillo, for appellant.

REYNOLDS, Justice.

The probate of an earlier will was set aside upon proof of a later, valid will made more than two years afterwards and against the contention that the application to probate the last will is a will contest barred by the two-year statute of limitations, but probate of the last will was denied after the jury found an agreement between the principal beneficiaries not to offer the last will for probate. Absent a concurrent agreement for a division of the estate, the agreement not to offer the last will for probate is ineffective to prevent its probate. Affirmed in part; reversed and remanded in part.

Margaret Jane Morris died 1 April 1975. She had executed a 19 November 1965 will leaving her property to her surviving husband, Henry M. Morris, the named independent executor, who offered the will for probate. A 29 April 1975 order entered in Cause No. 13,132 on the docket of the County Court of Potter County admitted the will to probate and decreed that Henry M. Morris receive letters testamentary.

Two years and five months later on 16 September 1977, Becky Jean Woodward Whitaker, the daughter of Mr. and Mrs. Morris, filed an application for probate of a will not produced in court, seeking the probate of a 22 March 1968 will of Margaret Jane Morris and the issuance to her of letters testamentary. By the provisions of the 1968 document, all previous wills were revoked; Henry M. Morris was bequeathed one dollar and the remainder of the decedent's estate was devised and bequeathed to her two surviving children, Henry Lee Morris and Becky Jean Woodward, share and share alike; and Becky Jean Woodward was appointed independent executor without bond. In her application, Becky Jean alleged that the 22 March 1968 will was destroyed after the decedent's funeral by Henry Lee, who stated that the will would upset their father. She further alleged that the 1968 will specifically revoked the 1965 will, the probate of which should be set aside and held for naught.

Henry M. Morris opposed the probate of the 1968 will. He alleged, Inter alia, that Becky Jean is foreclosed from making the present application by the Tex.Prob.Code Ann. § 93 (Vernon 1956) 1 two year limitation period for the contest of the probated 1965 will, is estopped by her knowledge and actions from asserting the 1965 will is not the last will and from offering the 1968 will for probate, and is bound by an agreement with her brother, to which Henry M. Morris is a third party beneficiary, to destroy the 1968 will.

Following a jury trial, the court submitted a charge to which no objection was made. Responsive to the special issues submitted, the jury found that Becky Jean and Henry Lee agreed not to offer for probate the 1968 will, and that the agreement was made for the benefit of their father, Henry M. Morris. The jury failed to find that Becky Jean knew her father was relying on the belief that the 1965 will was the last will of the decedent, or that Becky Jean unreasonably delayed in offering the 1968 will for probate, or that Becky Jean waived her right to probate the 1968 will. Accepting the verdict, the trial court found that, as a matter of law, the 1968 will has been proved in a manner required by the Probate Court, and that it revoked all prior wills.

The court then rendered judgment setting aside the probate of the 1965 will, denying the probate of the 1968 will and the grant of letters testamentary to Becky Jean, and decreeing that the estate of Margaret Jane Morris, deceased, pass according to the laws of intestate succession. Both Henry M. Morris and Becky Jean have appealed.

At the outset, the nature of Becky Jean's action must be considered. Her application was for the probate of the decedent's later 1968 will which, because of its destruction, could not be produced in court, a procedure authorized by Section 85. The filing was within four years after the testatrix's death, which is the usual period of time permitted for the filing of an application for the probate of a will. Section 73. Section 83(b) recognizes the situation where, after a will has been admitted to probate, an application may be made for the probate of another will of the decedent, and provides that the court shall determine the matters of probate or intestacy. However, Henry M. Morris contends that Becky Jean's action is a contest of the validity of the 1965 will and, being filed more than two years after the 1965 will was admitted to probate, is barred by the two-year statute of limitation imposed by Section 93 on will contests. We are not persuaded to that view.

With some exceptions not material here, Section 93 limits the period for contesting the validity of a probated will to two years after the will has been admitted to probate. In the classical sense, a will contest is a direct attack upon a decree admitting a will to probate. A & M College of Texas v. Guinn, 280 S.W.2d 373, 377 (Tex.Civ.App. Austin 1955, writ ref'd n. r. e.). A direct attack is an attempt to change the decree in a proceeding brought for that specific purpose. Ranger Ins. Co. v. Rogers, 530 S.W.2d 162, 167 (Tex.Civ.App. Austin 1975, writ ref'd n. r. e.).

But here, although Becky Jean alleges the probate of the 1965 will should be set aside because the 1965 will was revoked by the later 1968 will she offers for probate, the specific purpose of her application is to secure the probate of the 1968 will. Thus, her action does not meet the standard test of a direct attack upon the decree admitting the 1965 will to probate. Moreover, it has been authoritatively pronounced that the admission of a prior will to probate interposes no obstacle whatever to the timely probate of a later, valid will, which revokes all prior wills, as the last will of the testator. It is not necessary that a separate contest be first instituted to revoke the earlier will admitted to probate, because the probate of the last will, revoking all others, has the incidental effect of revoking the former probate, whether there is any pleading to that effect or not. Vance v. Upson,64 Tex. 266, 268-71 (1885).

The Vance pronouncements were made, as Henry M. Morris stresses, with reference to an application to probate a later will filed within ten months of the date the earlier will had been admitted to probate, and the question of a limitation period for a contest was not addressed. Still, the Vance pronouncements have been accepted for the principle that the timely probate of the last will is not a contest within the purview of, nor governed by, Section 93, although more than two years have elapsed since the probate of an earlier will. Comment, Procedural Content of Will Contests, 14 Baylor L.Rev. 401, 407-08 (1962); Bradford v. Bradford, 377 S.W.2d 747, 748 (Tex.Civ.App. Texarkana 1964, writ ref'd n. r. e.); Note, Will Contest The Probate of a Subsequent Will is Not a Contest, 16 Baylor L.Rev. 293 (1964). Beyond that, to say that the interplay of Sections 73, 83(b) and 93 converts any timely application for the probate of a later will into a contest of the validity of any earlier will admitted to probate more than two years previously and, thereby, bars probate of the last will, would, in that instance, destroy the right and power specifically given one to make disposition of property by a valid last will and testament. Sections 57 and 58.

Because a testatrix has the legal right to devise her property as she sees fit and to prescribe terms upon which her bounty should be enjoyed, Van Hoose v. Moore, 441 S.W.2d 597, 613 (Tex.Civ.App. Amarillo 1969, writ ref'd n. r. e.), the intent of the Probate Code is more accurately reflected by a determination, and we hold, that a timely application for probate of the testator's last will is neither a contest of the validity nor barred by the probate of an earlier will. If the probate of the last will is to be defeated, it must be for some other reason.

One of the reasons given by Henry M. Morris to defeat the probate of the 1968 will is that, contrary to the court's finding that the will was proved as a matter of law, the evidence did no more than raise fact issues of the execution and contents of the will. The evidence must be considered in connection with the provisions contained in Sections 84(b)(1), 85 and 88(a) and (b) which, taken together, prescribe the elements that must be proved, and the sources and standards of proof, for the probate of a written will which cannot be produced in court.

Mr. Jerry Kolander, the attorney who prepared the 1968 will and who was one of the subscribing witnesses, identified a conformed copy of the original 1968 will which was taken from his files and received in evidence. He testified to the competency of Margaret Jane Morris to make a will, the contents of the will, its execution under the formalities to make it a valid will, and to its non-revocation. The cross-examination of Mr. Kolander with respect to these matters was limited to his independent recollection of "what the will did," to which Mr. Kolander replied, "In general terms I could remember that she excluded her husband and left it to her children."

Mr. Kolander's secretary, the notary who took the acknowledgments of the testatrix and the subscribing witnesses to self-prove the will and conformed the copy introduced in evidence, corroborated Mr. Kolander's testimony of competency and execution. She was not cross-examined with respect to either of these matters.

Becky Jean said that she had possession of the 1968 will for seven years before her mother's death. She testified that the conformed copy identified by Mr. Kolander was a true and correct copy of...

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30 cases
  • Brown v. Traylor
    • United States
    • Texas Court of Appeals
    • April 27, 2006
    ...and power to make a last will and testament, under the rules and limitations prescribed by law.'" Estate of Morris, 577 S.W.2d 748, 756 (Tex.Civ.App.-Amarillo 1979, writ ref'd n.r.e.) (quoting TEX. PROB.CODE ANN. § 57 (Vernon 2003)). "When one meets the legal requirements, properly executes......
  • DeWoody v. Rippley, 2-96-164-CV
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    ...affidavit from an interested witness is sufficient to raise a fact issue. See id; see also Estate of Morris, 577 S.W.2d 748, 753 (Tex.Civ.App.--Amarillo 1979, writ ref'd n.r.e.). The portion of Michael DeWoody's affidavit relating Masters's comments is not a statement of opinion or belief, ......
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    ...of his property not violative of public policy, his testamentary disposition should be respected." Estate of Morris, 577 S.W.2d 748, 756 (Tex. Civ. App.—Amarillo 1979, writ ref'd n.r.e.). The paramount issue is whether the proposed instrument was executed under the solemnities provided by t......
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    ...Under section 93, a will contest is a direct attack upon the order admitting the will to probate, Estate of Morris, 577 S.W.2d 748, 752 (Tex.Civ.App.--Amarillo 1979, writ ref'd n.r.e.) and A. & M. College of Texas v. Guinn, 280 S.W.2d 373, 377 (Tex.Civ.App.--Austin 1955, writ ref'd n.r.e.),......
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3 books & journal articles
  • Estate Administration
    • United States
    • James Publishing Practical Law Books Texas Small-firm Practice Tools. Volume 1-2 Volume 2
    • May 5, 2022
    ...not divide it by agreement before they receive it in the regular course of judicial administration of the estate. [ Estate of Morris , 577 S.W.2d 748, 756 (Tex. Civ. App.—Amarillo 1979, writ ref’d).] For this reason and because such agreements tend to put an end to family controversies by w......
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    ...pet. denied, §15:13 Estate of McKinney v. Hair, 434 S.W.2d 217, 218 (Tex. App. — Waco 1968, writ ref’d n.r.e.), §5:02 Estate of Morris, 577 S.W.2d 748 (Tex. Civ. App. — Amarillo 1979, writ ref’d n.r.e.), §15:21 Estate of Querner , 974 S.W.2d 159 (Tex. App. — San Antonio 1998, writ denied), ......

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