Brackenridge v. Roberts

• Decision Date: 10 December 1924
• Docket Number: (No. 3923.)
• Citation: 267 S.W. 244
• Parties: BRACKENRIDGE et al. v. ROBERTS et al.
• Court: Texas Supreme Court

Page 244

267 S.W. 244

BRACKENRIDGE et al. v. ROBERTS et al.

(No. 3923.)

Supreme Court of Texas.

December 10, 1924.

Error from Court of Civil Appeals of Fourth Supreme Judicial District.

In the matter of the estate of George W. Brackenridge, deceased. Proceedings by M. E. Brackenridge and another to probate decedent's will, opposed by Isabella H. Roberts and another. Order denying probate was affirmed by the Court of Civil Appeals (245 S. W. 786), and proponents bring error. Reversed and remanded for new trial.

Williams & Neethe, of Galveston, and Denman, Franklin & McGown, F. C. Davis, and Marshall Eskridge, all of San Antonio, for plaintiffs in error.

Boyle, Ezell & Grover, and H. P. Drought, all of San Antonio, for defendants in error.

W. A. Keeling, Atty. Gen., for the State.

PIERSON, J.

This case was referred to Section A of the Commission of Appeals. Thereafter its presiding judge, S. H. German, prepared and filed with the court a very exhaustive and far-reaching opinion. Inasmuch as the opinion dealt with very important questions of first impression affecting the law of wills, and also overruled a prior decision of this court, it was deemed advisable to withdraw the case from the Commission and to set it for hearing and opinion by the court.

We adopt Judge German's statement of the case as follows:

"This suit involves a contest of a will and codicils executed by George W. Brackenridge, late of Bexar county, Tex. The will proper was executed with all the formalities required by law September 8, 1913. Afterwards at different times Mr. Brackenridge executed and appended to said will eight codicils; the last being dated August 30, 1918. Each of these codicils was in his own handwriting, except the last, which was written by Judge T. H. Franklin, and was properly signed and witnessed. It is not necessary for us to refer to the provisions of this will, except to say that it sought to dispose of a large estate consisting of both real and personal property.

"George W. Brackenridge died in Bexar county December 28, 1920. On January 17, 1921, Miss M. Eleanor Brackenridge, the then sole surviving sister of George W. Brackenridge, filed in the county court of Bexar county an application for the probate of this will and the various codicils. In due time Mrs. Isabella H. Roberts and Mrs. Isabella H. McIntyre, who are nieces of George W. Brackenridge, filed formal objections to the probate of said will. The state of Texas was permitted to intervene, due to the fact that the state university was an interested party. On a hearing in the county court, by order of March 28, 1921, the will with its codicils was admitted to probate. From this order appeal was taken by the contestants, Mrs. Roberts and Mrs. McIntyre, to the district court of Bexar county. In the district court contestants amended their pleadings, setting out more fully the grounds upon which they contested the probate of the will. They alleged that the will and codicils filed for probate had been revoked by the said George W. Brackenridge in this way:

"First, by a subsequent will, wholly written by the said George W. Brackenridge in his own handwriting, the contents of which will were unknown to contestants, except that it contained a clause expressly revoking all prior wills; that this subsequent will was executed some time during the month of December, 1920, and the same had never been in their possession.

"Second, by the execution of a declaration in writing wholly written by the said Brackenridge in his own handwriting, the contents of same being unknown to contestants, but that it stated in substance that it revoked all former wills and codicils. It was alleged that this declaration was written some time during the month of December, 1920, and had never been in the possession of contestants.

"The testimony is voluminous, and it is not necessary to notice more than a small portion of it. As touching the issue of the execution by George W. Brackenridge of the instrument of December, 1920, and its contents, the evidence may be briefly summarized as follows:

"For some time prior to his death Mr. Brackenridge had expressed a desire to make some changes in his will of 1913. Some time in 1917 or 1918, at his request, Leroy G. Denman prepared an instrument, intended to take the place of the former will and all codicils, with some changes. Mr. Brackenridge was not satisfied with some of the changes, and took the instrument with him, saying that if he decided to execute it he would write it in his own handwriting. Some three or four months before his death he went to his place of business where the will of 1913 was kept, and took it to his home, where it remained until the day of his death. At about the time he took the papers to his home he expressed a desire to make some slight changes in the will.

"Mrs. Ila H. Mitchell, who attended Mr. Brackenridge as day nurse for some two years before his death, testified substantially as follows: That some time in December, 1920, the exact date she could not name, but possibly about the 12th of that month, Mr. Brackenridge stated that he had decided to write his will. That he began to write, using a pencil and a blank sheet of paper, being what was commonly known as a second sheet of letter paper. That he wrote on this paper at different times for several days, and she thinks completed the writing about the 15th of December. That about the 18th of December she heard him say that he was glad he had finished his will. That after the writing was finished she saw the instrument on Mr. Brackenridge's table, and read the beginning clause. She could not remember the date, but testified that it was dated and had the signature of George W. Brackenridge at the bottom of the writing on the page. That the writing covered a considerable part of the page, being written in very small letters, in the handwriting of Mr. Brackenridge, and entirely with pencil. She never read any part of the instrument, except the beginning clause, which was about to the effect that it was the last will of the said George W. Brackenridge and revoked all other wills theretofore made. She knew nothing whatever of its contents, except as to the revoking clause, and that the name of Miss Eleanor Brackenridge was written in the instrument. She also testified that prior to the time she last saw this paper Mr. Brackenridge had kept it in the envelope or package with the will of 1913 and other papers. She last saw this instrument on the table with other papers on the 18th day of December, 1920, while Dr. Vinson was present with Mr. Brackenridge.

"Mrs. George Peeler, whose husband is a son of a niece of George W. Brackenridge, testified substantially as follows: That she frequently visited Mr. Brackenridge at his home and was familiar with his handwriting. That she was in his room on the 18th day of December, 1920, and at that time saw an instrument, which she designated as his will, on his table, written on a sheet of white paper, in the handwriting of Mr. Brackenridge, being dated and having his signature to same. That the writing covered about three-fourths of the page. That she looked at it twice, but did not read any part of it, except the beginning clause, which was, as stated by her, to the effect that it was the last will of the said George W. Brackenridge and revoked all former wills made by him. She did not see the name of Miss Eleanor Brackenridge on the paper. This was the last and only time she ever saw this instrument.

"Judge Thos. H. Franklin testified that he was at the home of Mr. Brackenridge on December 14, 1920, at which time a certain deed in trust was executed. At that time he asked Mr. Brackenridge if he had ever sent his will back to the Loan & Trust Company for safekeeping, and Mr. Brackenridge replied that he had not, and that he had determined to make no changes in it whatever. Dr. R. E. Vinson testified in substance that he was at the home of Mr. Brackenridge on the 16th, 17th, and 18th of December, 1920, during which time he read to Mr. Brackenridge the will of 1913 and discussed its provisions with him. That at that time Mr. Brackenridge expressed himself as being satisfied with the will of 1913, and stated that he desired to make no change, except to add the name of one trustee, unless he changed his mind, which he always reserved the right to do. About two days before his death Mr. Brackenridge requested his sister, Miss Eleanor Brackenridge, to take a package of papers, which he spoke of as containing his will, to the bank for safe-keeping. On the morning of the 28th of December, Miss Brackenridge took a package of papers, pointed out to her by her brother, and which she thought was the same package which he had tendered to her about two days before, and deposited them in her lock box at the bank. After the death of Mr. Brackenridge this package of papers was opened in the presence of Miss Brackenridge, and among other papers contained the will of 1913 and its various codicils. The writing testified about by Mrs. Mitchell and Mrs. Peeler was not in the package.

"The trial court submitted to the jury only two questions, as follows:

"`1. Did the said George W. Brackenridge during the latter part of the year 1920 write an instrument in pencil and sign the same containing words to the effect that he revoked all previous wills made by him?'

"`2. Was such instrument wholly written by the said George W. Brackenridge in his own handwriting?'

"Both of these questions were answered in the affirmative. On these answers the court rendered a judgment denying the application to probate the will of 1913 and its codicils, and adjudging that the same had been revoked. This judgment was affirmed by the Court of Civil Appeals at San Antonio. 245 S. W. 786."

The trial court rested the whole decision purely on the fact of the testator's writing and signing an instrument containing an expression of revocation, and whether it...