Buchanan v. Rollings

• Decision Date: 03 July 1908
• Citation: 112 S.W. 785
• Parties: BUCHANAN et al. v. ROLLINGS et al.
• Court: Texas Court of Appeals

112 S.W. 785

BUCHANAN et al. v. ROLLINGS et al.

Court of Civil Appeals of Texas.

July 3, 1908.

Rehearing Denied October 8, 1908.

Appeal from District Court, Lamar County; T. D. Montrose, Judge.

Proceedings by J. I. Rollings and others against E. H. Buchanan and others to probate a will. From a judgment admitting the will to probate, contestants appeal. Reversed and remanded for new trial.

Moore, Park & Birmingham, M. J. Hathaway, and Dudley & Dudley, for appellants. B. B. Sturgeon, W. F. Moore, and Burdett & Connor, for appellees.

WILLSON, C. J.

The appeal is from a judgment of the district court of Lamar county, admitting to probate as the last will of Hettie C. Buchanan, deceased, the contents, as testified to by witnesses, of a writing alleged to have been the will, wholly written by herself, of said Hettie C. Buchanan, and to have been lost or secreted, suppressed or destroyed, by appellants Buchanan and Mary Higdon. The proceedings resulting in the judgment appealed from were commenced in the county court of Lamar county by appellee J. I. Rollings, who in his application to probate the alleged will averred that he was one of the legatees named therein. A judgment admitting the alleged will to probate also was rendered in that court. From the testimony of one of the witnesses it appears that at the time she died (August 16, 1904) Mrs. Buchanan was about 45 years of age. From the testimony of another witness it appears that she was then about 60 years of age. She had been twice married—the first time to one Mich Webb, who died in May, 1902. She was married to appellant E. H. Buchanan December 28, 1903. While she and Webb were husband and wife they accumulated, it seems, property of considerable value. They had no child of their own, but in his infancy, on the death of his mother, who was Mrs. Buchanan's sister, had taken charge of and cared for as their own child, Johnny Mich Rollings, at the time of the trial about 20 years of age, the son, by his marriage with Mrs. Buchanan's said sister, of appellee J. I. Rollings. Webb died testate, and by his will left his entire estate to his surviving wife. By the terms of her alleged will as probated Mrs. Buchanan devised to Johnny Mich Rollings her homestead situated on Webb street in the city of Paris, and a farm consisting of about 145 acres, situated in Lamar county; in trust to James I. Rollings, for the use and benefit of said Johnny Mich Rollings, all her money and personal property; to one Wooten Saufley, her nephew, a house and lot in Paris; and to one Will Saufley, another nephew, a house and lot in the same city. Appellant Mary Higdon was Mrs. Buchanan's sister.

Before a will can be admitted to probate it must be proved "that such will has not been revoked by the testator." Sayles' Ann. Civ. St. 1897, art. 1904. We think appellants' contention that such proof was not made on the trial of this case in the court below must be sustained. The alleged will could not be found, and was not produced in court. It was last seen at a time when Mrs. Buchanan was a widow, before she was married to Buchanan, and several months before the time when she died. It was then in her custody. The presumption, therefore, was that she had revoked it during her lifetime. The burden of overcoming this presumption by proof to the contrary was on appellees. Evidence showing the regard entertained by Mrs. Buchanan for Johnny Mich Rollings, the principal devisee in the alleged will, the confidence she had in his father, J. I. Rollings, named in the alleged will as trustee for said Johnny Mich, and her declarations indicating the will to have been in existence from time to time after it was made until within 10 or 12 days of the date of her death, were relied upon as establishing the contention made that the will had not been revoked by her during her lifetime; and evidence that she habitually kept the alleged will in a certain shot pouch, that her husband and sister, appellants here, had opportunity to procure possession of and destroy the will, and that not only the will, but also the shot pouch in which Mrs. Buchanan kept it, after her death could not be found, was relied upon as tending to establish the contention that her said husband and sister had destroyed or secreted the will. As the cause will be remanded for a new trial, we will not comment on the evidence further than to say that, in our opinion, it was not sufficient to overcome the presumption that Mrs. Buchanan during her lifetime revoked the will. McElroy v. Phink, 97 Tex. 155, 76 S. W. 753, 77 S. W. 1025; Tynan v. Paschal, 27 Tex. 299, and note to same case in 84 Am. Dec. 628; McIntosh v. Moore, 22 Tex. Civ. App. 22, 53 S. W. 611; Behrens v. Behrens, 47 Ohio St. 323, 25 N. E. 209, 21 Am. St. Rep. 826; Scoggins v. Turner, 98 N. C. 135, 3 S. E. 719; Collyer v. Collyer, 110 N. Y. 481, 18 N. E. 110, 6 Am. St. Rep. 405; Knapp v. Knapp, 10 N. Y. 279; Scott v. Maddox, 113 Ga. 795, 39 S. E. 500, 84 Am. St. Rep. 265....