Aven v. Green
| Decision Date | 28 January 1959 |
| Docket Number | No. A-7024,A-7024 |
| Citation | 159 Tex. 361,320 S.W.2d 660 |
| Parties | M. G. AVEN, Petitioner, v. Mrs. Mary F. GREEN et al., Respondents. |
| Court | Texas Supreme Court |
Dunnam & Dunnam, Waco, for petitioner.
Robt. W. Brown, Gatesville, for Mrs. Mary F. Green and Mrs. Sarah C. Albright.
Bruce Graham, of Burford, Ryburn & Ford, Dallas, for Buckner Orphans' Home.
On July 13, 1956, petitioner, M. G. Aven, filed in the County Court of Coryell County an application for the probate of the last will and testament of Katie Bell dated February 27, 1948, together with two codicils thereto dated August 20, 1949, and February 1, 1950, respectively. Thereafter Mrs. Mary F. Green et al., respondents, filed an application for the probate of the last will and testament of the same testatrix, Katie Bell, dated March 31, 1937, and a codicil thereto dated June 28, 1938. Each party filed a contest to the other's application. At the hearing in the county court, respondents introduced evidence in support of their application for the probate of the 1937 will and the 1938 codicil thereto. In support of his application to probate the will of 1948 and the codicils thereto, petitioner introduced, without objection, the written testimony of C. S. Farmer, a subscribing witness to the 1949 codicil, which had been signed and sworn to by him before a notary public in McLennan County and not in open court in Coryell County. The affidavit refers to the 1949 codicil as the deceased's last will and testament, and makes no mention of the 1948 will. No other evidence was offered by petitioner. At the conclusion of the testimony the county court rendered judgment denying the applications of petitioner for the probate of the 1948 will and its codicils, and admitting to probate the 1937 will and the 1938 codicil offered by respondents. From that judgment petitioner duly perfected an appeal, as authorized by Sec. 28, Texas Probate Code, V.A.T.S., to the District Court of Coryell County. The case was not tried on its merits in the district court, but the appeal was dismissed on respondents' plea in abatement and motion to dismiss on the ground that petitioner having offered no evidence in support of his application for the probate of the 1948 will and the codicils thereto, except the affidavit signed and sworn to out of court, abandoned his application. That judgment was affirmed by the Court of Civil Appeals, 316 S.W.2d 78.
Had the petitioner failed or refused to offer any evidence whatever or take any steps in support of his application, he should be held to have abandoned same and, therefore, forfeited his right to an appeal, and the judgments below should be affirmed. The general applicable rule is well stated in Sorrell v. Stone, 60 Tex.Civ.App. 51, 127 S.W. 300, 301, wr. er. ref., in this language:
(1, 2) In applying this general rule this court has held that where, in a suit to set aside an order admitting a will to probate, the petitioner fails or refuses to offer evidence in support of his case, he will be held to have abandoned his suit as a matter of law. Cullinan v. Cullinan, 154 Tex. 247, 275 S.W.2d 472; Turner v. Jackson, Tex.Civ.App., 256 S.W.2d 127, wr. er. ref. We can find no basis for a conclusion that the rule applicable to a litigant seeking to set aside the prior probate of a will should not apply to one seeking the probate of a will. In each case he has presented issues for determination and has the burden of proceeding in the case. The proper test in such cases in determining the issue of abandonment for the purposes of appeal under Section 28 of Texas Probate Code is not whether a proponent made out or proved a prima facie case in the probate court or whether particular evidence offered by him is in legal effect incompetent. Rather, it is whether a proponent actively attempted to support his application. The affidavit offered by petitioner is not in compliance with Sec. 84(b)(1) and Sec. 87, Texas Probate Code. Our question is not whether the introduction of the affidavit made out a prima facie case or was in fact the offering of any competent evidence, and we need not decide that question. What we hold is that the offer of the affidavit, even if defective, was an active attempt on the part of petitioner to support his application for probate which preserved his right to...
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Garcia v. State
...Moss v. Gibbs, 370 S.W.2d 452, 458 (Tex.1963); Aven v. Green, 316 S.W.2d 78 (Tex.App.--Waco 1958), rev'd on other grounds, 159 Tex. 361, 320 S.W.2d 660 (1959); Cf. Hill v. State, 827 S.W.2d 860, 864 (Tex.Crim.App., 1992) ("When the legislature speaks to an issue subsequent to this or any ot......
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Van Hoose v. Moore
...v. Frost National Bank, 145 Tex. 206, 196 S.W.2d 497. Newsome v. Carpenter (Tex.Civ.App.) 382 S.W.2d 350 (Ref. N.R.E.). Aven v. Green, 159 Tex. 361, 320 S.W.2d 660. The claims, counter claims and alternative contentions of the various parties and groups of parties are numerous and somewhat ......
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In re Estate of Mask, No. 04-07-00667-CV (Tex. App. 7/23/2008)
...the associated will, we will limit our review to the evidence surrounding the execution of the codicil. See Aven v. Green, 159 Tex. 361, 320 S.W.2d 660, 661-62 (1959). If the properly admitted evidence is sufficient to prove the proper execution of the codicil without raising a fact issue, ......
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In re Estate of Mask, No. 04-07-00667-CV (Tex. App. 10/15/2008)
...of the codicil "inseparably connected" the codicil to the will and effectively "republished" Ella's will. See Aven v. Green, 159 Tex. 361, 320 S.W.2d 660, 662 (1959). Because Jimmy and Ronnie challenged both the will and the codicil, and in this case the proper execution of the codicil effe......