Brown v. Burke

• Citation: 26 S.W.2d 415
• Decision Date: 20 March 1930
• Docket Number: No. 888.,888.
• Parties: BROWN et al. v. BURKE et al.
• Court: Texas Court of Appeals

26 S.W.2d 415

BROWN et al. v. BURKE et al.

No. 888.

Court of Civil Appeals of Texas. Waco.

March 20, 1930.

Rehearing Withdrawn on Motion of Appellees April 10, 1930.

Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.

Application by Martha Burke Brown and others for the probate of the will of J. H. H. Burke, deceased, contested by Odie Burke and others. The instrument was probated by the county court, but on appeal the district court rendered judgment for contestants, and the proponents appeal.

Reversed and remanded.

J. A. Millerman, of Abilene, and Callicutt & Upchurch, and Taylor & Howell, all of Corsicana, for appellants.

Richard & A. P. Mays and Davis, Jester & George, all of Corsicana, for appellees.

BARCUS, J.

This is an appeal from an instructed verdict given by the trial court, refusing to probate the following instrument as the last will and testament of J. H. H. Burke:

                                         "February 2, 1904
                

"Know All Men Whom This May Concern: That I, J. H. H. Burke have willed at my death all my property to my wife, Martha J Burke, both personal and real estate to her, her lifetime if she does not marry, and if she marries then the property to be equally divided between five children, Odie, Zeb and Harrison Burke, my sons, also Mattie and Johnnie Burke, two my daughters, they paying Essie Connor fifty dollars out of the estate, who is the wife of William Connor. I don't want William Connor to ever have as much as one cent of my effects. I hope this will be satisfactory with my wife and children. Don't disagree over the property.

                                "[Signed] J. H. H. Burke."
                

The instrument was shown to be entirely in the handwriting of J. H. H. Burke. At the time the instrument was drawn, Mr. Burke was sixty-four years of age. He died in December, 1922, at the age of nearly eighty-two years. His wife, Martha J. Burke, died in 1912. At the time of Mr. Burke's death all the property which he owned was community property of himself and his deceased wife. He left surviving him the six children named in said written instrument, Essie Connor named therein being one of his children. No fact or circumstance surrounding the writing and execution of said document was offered in evidence. The instrument was offered for probate by Martha (Mattie) Burke Brown, one of J. H. H. Burke's children, three years and seven months after the death of Mr. Burke, and its probate was resisted by his three sons, Odie, Zeb, and Harrison Burke. During the pendency of the suit, Johnnie Burke, who had married Mr. McCluney, died, and her children intervened and joined Martha Burke Brown, asking for the instrument to be probated.

The instrument was probated by the county court. On appeal to the district court the cause was tried to a jury. The only testimony offered was that of two witnesses to establish the fact that the instrument was written wholly in the handwriting of J. H. H. Burke, and testimony showing the names of the children of J. H. H. Burke; the fact that Mrs. Burke died in 1912 and her husband died in 1922 at the age of eighty-two; and the jurisdictional facts. At the conclusion of said testimony the proponents rested and the contestants asked the court for a peremptory instruction, which was given, on the theory that since it was shown that Mrs. Burke died prior to the death of her husband, her legacy lapsed, and that being the only legacy provided for under the will, there was no taker thereunder and no reason for said will being probated; the contestants' theory, which the trial court adopted, being that since the instrument provides specifically that Mrs. Burke was to have the property during her lifetime, if she did not marry, and if she married, then the property was to go to the children, and since she died without remarrying, that there was no remainder to the children. In other words, the contestants contend that the children named in said will had no remainder in the property except and unless their mother remarried. Appellants contend...