Carlson v. Carlson

• Citation: 272 S.W. 823
• Decision Date: 23 April 1925
• Docket Number: (No. 229.)
• Parties: CARLSON et al. v. CARLSON et al.
• Court: Court of Appeals of Texas

Page 823

272 S.W. 823

CARLSON et al. v. CARLSON et al.

(No. 229.)

Court of Civil Appeals of Texas. Waco.

April 23, 1925.

Rehearing Denied May 21, 1925.

Appeal from District Court, Bosque County; Irwin T. Ward, Judge.

Proceeding in the county court by Charles Carlson and others to probate the last will and testament of Syverine Pederson, contested by Karen Carlson and others. On appeal from the county court, the district court entered a judgment admitting the will to probate, and contestants appeal. Affirmed.

Geo. P. Robertson and Geo. L. Robertson, both of Meridian, for appellants.

J. P. Word and P. S. Hale, both of Meridian, for appellees.

BARCUS, J.

Appellees filed their petition in the county court of Bosque county to have probated, as the last will and testament of Syverine Pederson, a will dated July 3, 1920; Mrs Pederson having died on June 5, 1923. The appellants filed a contest to the probation of said will, claiming that the testatrix had revoked same by the execution of a subsequent will in 1922. The will was probated in the county court, and on appeal to the district court was tried to a jury and submitted on the following issue:

"Did the deceased, Syverine Pederson, in the year 1922, execute an instrument containing, substantially, the clause, `This is my last will and testament and I hereby revoke all other wills by me heretofore made,' as testified to by Mr. J. M. Jenson? Answer `Yes' or `No.'"

To which the jury answered: "No." Based on said finding and the additional findings by the court, the will offered for probate by appellees was admitted to probate. Hence this appeal.

The only objection raised by appellants to the submission of the issue to the jury was that it was not raised by the testimony, and that the court should have instructed a verdict refusing the probation of said will. Appellants contended that the evidence is undisputed that the testatrix did execute a will in 1922, by which she revoked the will offered for probate. It was an established fact that the testatrix did execute, in the manner and form as required by law, the will dated July 3, 1920, which was probated, and that same is valid, unless it was revoked by the execution of a subsequent will in the year 1922. The only testimony offered, with reference to the testatrix having executed a will in 1922, was by the witness J. M. Jenson. He testified, in substance, that he was a banker and wrote wills for a number of people; that he wrote a will for the testatrix at her request some time during the year 1922; that the caption stated: "This is my last will and testament and I hereby revoke all other wills by me heretofore made." He further testified that the will was signed by the testatrix and two...