Brown v. Taylor, No. 01-04-01091-CV (Tex. App. 11/2/2006)
| Decision Date | 02 November 2006 |
| Docket Number | No. 01-04-01091-CV.,01-04-01091-CV. |
| Parties | GEORGE C. BROWN, Appellant, v. LUCY TRAYLOR, DARRYL KEITH WALKER, PAUL WAYNE WALKER, ANTHONY C. WALKER, TERRY L. WALKER, and JAMES E. WALKER, Appellees. |
| Court | Texas Court of Appeals |
Panel consists of Justices TAFT, HIGLEY, and BLAND.
SUPPLEMENTAL OPINION ON REHEARING
On April 27, 2006, the Court issued its opinion and judgment, which affirmed the lower-court judgment in part, reversed it in part with respect to the award of attorney's fees, and remanded the cause for a determination of certain matters relating to attorney's fees. Appellant, George C. Brown ("George"), has moved for rehearing and for en banc reconsideration. The panel denies the motion for rehearing. Furthermore, a majority of the justices of this Court deny the motion for en banc reconsideration. The panel's April 27, 2006 opinion and judgment remain unchanged by this supplemental opinion, which we issue to address very briefly the opinion dissenting from the denial of en banc reconsideration.
With the exception of the dissenting justice's arguments relating to the publication of a will, virtually all of the dissenting justice's arguments fall into one of the following categories: (1) unassigned, non-fundamental error—raised neither in appellant's opening brief, in his untimely reply brief,1 or in his motions for rehearing or for en banc reconsideration—which we are prohibited from considering;2 (2) non-fundamental-error challenges that were not preserved below;3 or (3) credibility determinations, which we cannot make in a factual-sufficiency review.4
As for the dissenting justice's arguments concerning publication, we have already explained why the self-proving-affidavit provision of the Probate Code, upon which the dissenting justice relies, does not apply to a will (like this one) that does not contain such an affidavit. See Brown v. Traylor, No. 01-04-01091-CV, slip op. at 31-32 n.24, 2006 WL 1098265, at *11 n.24 () ( ) (citations omitted).
Appellant moved for rehearing. The panel denied the motion for rehearing.
A majority of the justices of the Court voted to deny appellant's motion for en banc reconsideration. See Tex. R. App. P. 41.2(c).
Justice Keyes, dissenting from denial of en banc reconsideration.
OPINION DISSENTING FROM DENIAL OF EN BANC RECONSIDERATION
This is a classic example of the adage that bad cases make bad law. Appellant, George C. Brown ("George") appeals from a judgment, rendered upon a jury verdict, admitting to probate what the jury concluded was a true and correct copy of a valid will executed by his father, Henry Brown ("Henry") on March 13, 1999 (the 1999 Will Copy). Because I believe the case was tried under an incorrect charge and the result is an appellate opinion that misconstrues and gravely weakens the statutory protections against the probate of fraudulent wills, I respectfully dissent from denial of en banc review.1
The panel holds that the law as stated in the charge was correct and that appellant waived his right to legal review of the evidence in support of the judgment. Thus, finding that the evidence presented to the jury was factually sufficient to support the jury's findings, it affirms the judgment holding the 1999 Will valid and ordering it probated. I would hold that (1) the trial court erred in rejecting a jury question and instruction that correctly stated the law regarding attestation of a will and in submitting a legally improper instruction to the jury and (2) that the improper jury question and instructions resulted in an erroneous judgment holding that the 1999 Will was executed with all the formalities and solemnities and under the circumstances to make it a valid will. I would reverse and remand the case for further proceedings in accordance with this opinion.
Henry Brown was an elderly and ill man in 1999 and had not signed his own documents for years when the jury found he had the 1999 Will drafted and executed in accordance with the law.
The undisputed evidence establishes that Pamela Yancy—a notary public and not a lawyer—drafted all pages of the 1999 Will, notarized all the signatures, and made the 1999 Will Copy offered for probate. Yancy also signed the 1999 Will she had drafted as a subscribing witness, signing on a separate page on which two signatures by Henry appear, and was the only subscribing witness who also signed the testamentary pages, which Henry did not sign. Yancy is the daughter of appellee Lucy Traylor, a non-relative of Henry and a substantial legatee under the 1999 Will, who offered the 1999 Will Copy for probate.
The other subscribing witnesses—Melva Collins, Wanda Walker, and Darryl Walker—signed another separate page styled an "attestation clause" at Yancy's request. That page was unattached to the other pages of the 1999 Will Copy offered for probate, was in a different font from the testamentary pages, and contained interlineations and strike-outs regarding which no one but Yancy testified. The "attestation clause" stated:
On the date above written, Henry J. [stricken] Brown, well known to us declared to us, and in our presence, that this instrument, consisting of [interlineated `5pg'] pages, is his last will and testament, and Henry [`J.' stricken] Brown, then signed this instrument in our presence, and at Henry [`J.' stricken] Brown's request we now sign this will as witnesses in each other's presence. Further that Henry [`J.' stricken] Brown, appeared to us to be of sound mind and lawful age, and under no undue influence.2
The "attestation clause" was not a self-proving affidavit, as the evidence established and the panel found; and thus the validity of the 1999 Will had to be proved by testimony at trial. See Tex. Prob. Code Ann. § 59(a) (Vernon 2003).
Yancy, the drafter of the 1999 Will, was the only witness who testified to having any knowledge of the contents of the 1999 Will. She was also the only witness who testified to the circumstances under which the 1999 Will was prepared, and she alone explained the different fonts, unattached and unnumbered pages, strike-outs, and interlineations in the 1999 Will Copy submitted for probate. She was also the only witness who testified to seeing Henry Brown execute the 1999 Will and the only subscribing witness who testified that he knew its contents. Other than Yancy's testimony, there is no evidence that the unnumbered testamentary pages, the separate page with Henry's two signatures and Yancy's signature, and the separate "attestation clause" with the signatures of Melva Collins and Wanda and Darryl Walker—were ever attached to each other or formed part of the same instrument. There is no evidence from anyone but Yancy that the original of the 1999 Will Copy offered for probate was in the room or even in existence when Collins and Wanda and Darryl Walker signed the separate attestation clause.
On direct examination, Yancy testified that Henry signed the 1999 Will; that Darryl and Wanda Walker and Melva Collins were all present when he signed; and that all witnesses signed their names in his presence and in her notary log. She also testified that Henry did not discuss anything about the 1999 Will with her on March 13, 1999, the date the other subscribing witnesses signed the attestation clause, "because again the document was done." The only conversation was Her only conversation with Darryl was to ask him for his I.D. Yancy testified that Darryl and his mother were at the house for 20 minutes, which "was an estimation based on how much time it takes to write things down." She testified that Melva Collins "might" not have read what she was signing, stating, "You'd have to ask her." On cross-examination, when counsel for appellant attempted to ask Yancy whether she recalled Darryl or Wanda Walker reading the 1999 Will, appellees' attorney objected on the ground—reiterated several times during the trial—that "[w]itnesses do not have to read a will." The court sustained the objection.
Two other subscribing witnesses, Melva Collins and Darryl Walker, also testified at trial. Wanda Walker, Henry's sister and the other subscribing witness, had passed away before Henry.
Collins testified by deposition read in open court that she knew she was signing a will only because Yancy picked her up, told her they were going to lunch and a movie, and asked her She signed something "at Mr. Brown's house." There was a lot of paperwork on the table, but She was She did not remember who was there except Yancy and "the guy," and she did not remember "what words were said about nothing."
Collins testified that the "guy" sitting at the table "was an older man, I think." Something was wrong with him, and "[h]e just looked sickly to me." This was the first time she had seen Henry Brown, and she did not recall whether he said anything to her. He was...
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