Berry v. Griffin

• Decision Date: 10 December 1975
• Docket Number: No. 1282,1282
• Parties: Josephine L. BERRY, Appellant, v. Reverend Leslie T. GRIFFIN, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 394

531 S.W.2d 394

Josephine L. BERRY, Appellant, v. Reverend Leslie T. GRIFFIN, Appellee.

No. 1282.

Court of Civil Appeals of Texas, Houston (14th Dist.).

Dec. 10, 1975.

Rehearing Denied Jan. 14, 1976.

B. Edward Williamson, Prappas, Caldwell & Moncure, Houston, for appellant.

Allen B. Daniels, F. W. Moore, Houston, Herman L. Little, Jr., Asst. Atty. Gen., Austin, Charles S. Taylor, Jr., Houston, Cullen Smith, Naman, Howell, Smith & Chase, Waco, for appellee.

COULSON, Justice.

This is a 'Lost Will' case. In 1969 Miss Josephine Allebach executed a will. After her death, on May 24, 1974, the original of the Will could not be found. The principal beneficiary under the Will, Reverend Leslie T. Griffin, sought probate of an unsigned copy of the Will. Josephine L. Berry, and others, contested the probate of the 'Lost Will' on the ground that the decedent revoked her will prior to her death by destroying the Will. After a jury trial the court admitted the 'Lost Will' to probate. We reverse and render.

The jury found: (1) that when last seen the Will was not in the possession of the deceased or in a place where she had ready access to it, (2) that the original Will was not found after Josephine Allebach's death, and (3) that the deceased did not revoke the Will.

Where a validly executed will was last seen or accounted for in the possession of the decedent, or in a place where the decedent had ready access to it, and it cannot be found after the deceased's death, the presumption arises that the testatrix destroyed it with the intention of revoking it. Mingo v. Mingo, 507 S.W.2d 310 (Tex.Civ.App.-San Antonio 1974, writ ref'd n.r.e.). In the case before this court the presumption arises because there is no dispute that the Will of Josephine Allebach was validly executed and could not be found after her death. Two witnesses testified that the Will was last seen in the testatrix' possession. The proponent of the Will claims that there was testimony upon which the jury could rely to rebut the 'possession testimony', and that the presumption of revocation did not arise. T. R. Allebach, acting under a power of attorney, entered Josephine Allebach's safe deposit box, per her directions, and delivered its contents to her at her home. He found in the safe deposit box an envelope with the word 'Will' marked on it. After delivering it to Josephine Allebach, she took it out of the envelope and said, 'This is my will.' T. R. Allebach also testified that the deceased showed him the Will at her home one month before her death.

Paul Bryant corroborated T. R. Allebach's testimony. Bryant went with T. R. Allebach to the bank and aided him in emptying Josephine Allebach's safe deposit box and delivering its contents to her at her home. Bryant also saw the envelope marked 'Will' and testified that Josephine Allebach took the envelope and said that it was her will.

The proponent relies on the testimony of Irene Werlla that the Will was never in the house. Werlla, and her husband, lived in the house with Josephine Allebach and served as her caretaker and companion. Werlla testified that Josephine Allebach told her that the Will was in her safe deposit box. Other witnesses called by the proponent testified as to Josephine Allebach's good and sound mental state before her death. There was also testimony that the deceased had not discussed revoking her will and still felt amicable toward the principal beneficiary of her will.

The rule is well settled that an inference may be drawn from a fact proved, but an inference may not be drawn from an inference. Texas & N.O.R. Co. v. Burden, 203 S.W.2d 522 (Tex.Sup.1947). Werlla's testimony, if accepted, establishes only that she never saw the Will in the house. It may be inferred from this that the Will was not in the house, but from that inference it may not be inferred that the Will was never in Josephine Allebach's possession or in a place where she had ready access to it.

Werlla's testimony was not evidence that the jury could rely on in finding that the Will was not in Josephine Allebach's possession or in a place where she had ready access to it. Only T. R. Allebach and Paul Bryant gave testimony that could be considered on the 'possession' question. Both testified that they delivered an envelope marked 'Will' to Josephine Allebach, that she took possession of it, and she declared it to be her will. Where there is no evidence to the contrary, the jury may not disregard the undisputed evidence and decide such issue in accordance with their wishes. Texas & N.O.R. Co. v. Burden, supra. The testimony of T. R. Allebach and Paul Bryant, coupled with the fact that the Will was not found after Josephine Allebach's death, resulted in the presumption of revocation as a matter of law.

Assuming arguendo that the jury could properly disregard the testimony of T. R. Allebach and Paul Bryant that they took the Will to the deceased from her safe deposit box...