Bailey v. Bailey

• Citation: 171 S.W.2d 162
• Decision Date: 29 March 1943
• Docket Number: No. 5533.,5533.
• Parties: BAILEY et al. v. BAILEY et al.
• Court: Court of Appeals of Texas

171 S.W.2d 162

BAILEY et al. v. BAILEY et al.

No. 5533.

Court of Civil Appeals of Texas. Amarillo.

March 29, 1943.

Rehearing Denied May 3, 1943.

Appeal from District Court, Travis County; Roy C. Archer, Judge.

Action by Frank A. Bailey, Sr., and others against Mrs. Anna T. Bailey and others to probate the will of James R. Bailey, deceased. The application to probate was denied by the county court and proponents appealed to the 98 District Court of Travis County and the case was transferred to the 126 Judicial District Court of the same county. Judgment probating the will was entered after contestants' motions for directed verdict and for judgment non obstante veredicto were denied and contestants appealed to the Court of Civil Appeals of the Third Supreme Judicial District at Austin. Upon order of the Supreme Court, the case was transferred to the Court of Civil Appeals of Texas at Amarillo.

Reversed and rendered denying the application to probate.

Hart & Brown, of Austin, for appellants.

H. S. Lattimore, of Fort Worth, and Shelton & Shelton, of Austin, for appellees.

STOKES, Justice.

This is an action to probate a written will which was not produced and which the proponents alleged was lost or destroyed by some person other than the testator but not revoked by him.

On June 16, 1937, James R. Bailey executed his typewritten will. He died March 25, 1941, in Travis County. After his death no will executed by him was found or produced. On May 21, 1941, Frank A. Bailey, Sr., a brother of decedent, filed in the County Court of Travis County an application to probate, as the will of decedent, an unsigned typed carbon copy of the will executed by decedent in 1937. He alleged that this typed copy of the will was found among decedent's papers in decedent's lock box at an Austin bank but that the will itself could not be found.

J. R. Bailey was survived by his wife, Mrs. Anna T. Bailey; his brothers, Frank A. and Jesse Bailey; his sister, Mrs. H. L. Dailey; his sister-in-law, Mrs. Benjamin P. Bailey, a widow, and her two children, Benjamin P. Bailey, Jr., and Mrs. Marcita Bartlett. Each of these persons was made a party to the application of Frank A. Bailey to probate the alleged lost will, as were also Lucille S. Hart and Ann Shirley Hart who, with Mrs. Anna T. Bailey and Frank A. Bailey, were named in the alleged lost will as independent executors of decedent's estate.

Mrs. Anna T. Bailey, the surviving wife, Lucille S. Hart, her daughter by a former marriage, Ann Shirley Hart, the daughter of Lucille S. Hart, Mrs. Benjamin P. Bailey and her two children filed answers denying the allegations of proponents that the will executed by decedent in 1937 had not been revoked.

The application to probate the will was heard in the county court and denied, from which proponents duly appealed to the 98 District Court of Travis County. By that court the case was thereafter transferred to the 126 Judicial District Court of the same county, where the cause was tried with a jury and resulted in a finding by the jury that the deceased did not revoke the will made by him on June 16, 1937. Judgment probating the will was thereafter entered and the contestants' motion for new trial being overruled, they appealed to the Court of Civil Appeals of the Third Supreme Judicial District at Austin. Upon an order entered by the Supreme Court equalizing the dockets of the Courts of Civil Appeals, the case was transferred to this Court and is now before us for review.

Appellants, who were the contestants below, present a number of assignments of error, or points, in which they assail the judgment of the trial court, their principal contention being that there was no evidence legally sufficient to rebut the presumption that decedent revoked the will, which was not produced, and that the court erred in overruling their motions for an instructed verdict, for judgment non obstante veredicto, and for a new trial, and in admitting the will to probate.

The record shows that on June 16, 1937, J. R. Bailey employed E. Cartledge, an attorney of Austin, to prepare his will; that the attorney dictated the will to his secretary who prepared it, making an original and two carbon copies, the original being upon heavy white paper, one copy being on light-weight white paper, and the third being on Manila paper. After the original instrument was signed by the testator and two witnesses, the secretary inserted the two carbon copies in her typewriter and typed the names of the testator and the two witnesses in the places where they had been signed on the original document, folded the original will and the white carbon copy, and placed them in an envelope which was unsealed and had E. Cartledge's name and address printed thereon. She then handed them to Dr. Bailey, who left the office with them in his possession. Some three days prior thereto his wife, Mrs. Anna T. Bailey, and her daughter, Mrs. Lucille Hart, had departed for a summer vacation trip to California, and it was understood by all parties that Dr. Bailey would join them within a few days. On the evening of the day the will was prepared, J. C. Winder, a close friend of Dr. Bailey, was consulting with him at his home concerning various matters of business and during the conversation Dr. Bailey handed to Winder an unsealed envelope containing some papers, telling Winder that Mr. Cartledge had that day prepared the papers contained in the envelope, and remarking, "I am getting old but I have work to do yet, but still I know I am at the age when anything could happen and somebody may want to know what to do with my property when I am gone and this will show them what to do with it." He thereupon requested Winder to take the envelope to R. E. Carrington at the Capital National Bank where he kept his account and to tell Mr. Carrington to put it in Dr. Bailey's lock box. The testimony shows that the next morning Winder complied with Dr. Bailey's request and delivered the envelope and papers which it contained to Carrington, telling him that Dr. Bailey desired that they be placed in his lock box. The lock box could not be opened except by the use of two keys at the same time, one of which was kept by the bank and the other by Dr. Bailey in his office at the University of Texas where he was employed as an instructor. Carrington testified that he had no recollection whatever of the transaction. Dr. Bailey left on the night of June 16, 1937, for California and did not return until September following, and as far as the testimony shows, no one saw the will at any time thereafter. Dr. Bailey died March 25, 1941, and in the afternoon following the morning of his burial two days later, his brother, Frank A. Bailey, in company with the president of the bank, entered the lock box and among other papers discovered the envelope handed to Dr. Bailey by Mr. Cartledge's secretary on June 16, 1937, when the will was prepared and executed upon which had been written in the handwriting of R. E. Carrington, the bank employe to whom Winder testified he delivered it, the words "Will, J. R. Bailey." The envelope contained the white carbon copy of the will, but the original document executed by Dr. Bailey was missing and a diligent search of all places where it would likely be found failed to reveal it.

No question is raised as to the due execution of the will nor as to its contents, since its execution was established by the testimony of Mr. Cartledge and Miss Ella Everitt, his secretary, who prepared the will, and its contents were established by the carbon copy found in the envelope in Dr. Bailey's lock box and also by the Manila copy kept in the files in Mr. Cartledge's office. The controversy, therefore, is reduced to one of whether the court was authorized by the testimony to order the will probated in the face of the legal presumption arising from its loss.

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. McIntosh v. Moore, 22 Tex.Civ.App. 22, 53 S.W. 611; Buchanan v. Rollings, Tex.Civ.App., 112 S.W. 785; Clover v. Clover, Tex.Civ.App., 224 S.W. 916; Aschenbeck v. Aschenbeck, Tex.Civ.App., 62 S.W.2d 326; Davis v. Roach, Tex.Civ.App., 138 S.W.2d 268; Collyer v. Collyer, 110 N.Y. 481, 18 N.E. 110, 6 Am.St.Rep. 405.

As far as the testimony reveals, the last time anyone actually saw Dr. Bailey's will was when the secretary of Mr. Cartledge handed it to him in Cartledge's office on June 16, 1937. It was accounted for, however, some two years later when Dr. Bailey visited his brother, Frank A. Bailey, at Fort Worth. On that occasion Dr. Bailey informed his sister-in-law, Mrs. Frank A. Bailey, of the existence of his will and told her it was in his lock box at the Austin bank. He also told her that her husband, Frank A. Bailey, was one of the executors and indicated to her that in the event anything should happen to him, he wanted his br...