Combs v. Howard

• Decision Date: 02 June 1939
• Docket Number: No. 13917.,13917.
• Citation: 131 S.W.2d 206
• Parties: COMBS v. HOWARD et al.
• Court: Texas Court of Appeals

131 S.W.2d 206

COMBS v. HOWARD et al.

No. 13917.

Court of Civil Appeals of Texas. Fort Worth.

June 2, 1939.

Motion for Rehearing Withdrawn by Agreement August 3, 1939.

Appeal from District Court, Parker County; J. E. Carter, Judge.

Proceeding by Nolan Queen in the county court for the probate of the last will of Luvenia Reynolds, deceased, wherein A. B. Combs, a brother of Luvenia Reynolds, deceased, filed a contest. The will was duly admitted to probate in the county court and the contestant appealed to the district court. Janet Reynolds Howard and other heirs of W. H. Reynolds intervened as parties proponent of the will with Nolan Queen, and Nolan Queen was permitted to withdraw as a party. A judgment was entered by the district court admitting the will to probate, and the contestant appeals.

Judgment affirmed.

Goree & Rice and William S. Harris, all of Fort Worth, for appellant.

R. B. Hood and Grindstaff, Zellers & Hutcheson, all of Weatherford, for appellees.

SPEER, Justice.

This is a will contest. We reversed a judgment entered in this case upon an instructed verdict by the District Court of Parker County, in favor of contestant, on a former appeal. See Howard v. Combs, Tex.Civ.App., 113 S.W.2d 221.

Nolan Queen filed an application in the County Court of Parker County, for the probate of the last will of Luvenia Reynolds, deceased. All necessary allegations were made, including one showing that the proponent was named as independent executor in the will, and that he was in no way disqualified from accepting letters testamentary. The will was tendered along with the application.

The proposal was duly contested by A. B. Combs, a brother of testatrix. By his pleadings he showed himself to have such interest in the estate as would entitle him to contest the probate of the will. Grounds for contest shown were (a) that the instrument filed by proponent, purporting to be the last will of testatrix, was not what it purported to be, but was in fact only a carbon copy of a will; (b) that Mrs. Luvenia Reynolds had died on August 9th, 1936, intestate, having theretofore made a will, of which the instrument filed was a carbon copy, but that she had subsequently caused said will to be destroyed, with the intent to revoke it. Further allegations were made by contestant to the effect that W. H. Reynolds, the former husband of testatrix, had predeceased her, and that they were possessed of a community estate at the time of and prior to his death; that they had no children, and that at the death of W. H. Reynolds, Luvenia Reynolds became seized and possessed of the entire community estate. That the contestant, being a brother of testatrix, was therefore an interested party.

The will was duly admitted to probate in the county court of Parker County, on September 10th, 1936. Contestant excepted to the judgment and perfected an appeal to the District Court. A transcript of the proceedings had in the County Court was duly certified to the District Court, and filed on September 26th, 1936.

After the appeal and before the case was tried in the District Court, Janet Reynolds Howard and other heirs of W. H. Reynolds, obtained leave of court and intervened as parties proponents of the will, with Nolan Queen. These interveners adopted the application theretofore filed by Mr. Queen, and further plead: That W. H. and Luvenia Reynolds were husband and wife, having lived together as such for more than fifty years, and accumulated community property; that they had no children; that during the life time of both, they entered into a binding contract between themselves to the effect that neither would make a will while they both lived, so that the survivor would receive the full benefit of all the community estate during his or her lifetime, but that in consideration of the benefits to be received under that agreement, the survivor would make a will, passing said property, after his or her death, in equal parts, one-half to the heirs of the husband, and one-half to the heirs of the wife. That both parties fully performed said contract; that W. H. Reynolds predeceased his wife and left no will. That Luvenia Reynolds survived her husband, and accepted the property under the terms of said contract and agreement; that she fully performed the terms of said contract, and, after the death of her husband, made and executed the will, then proposed to be probated; that said will provided that it was made pursuant to and in keeping with said contract. That said will was executed in duplicate originals, both of which were left with Mr. Queen, with instructions to see that it was carried out, regardless of what happened. That it was never revoked and that because of the executed contract between her and her husband, the testatrix was estopped to revoke it.

Prior to the trial in the District Court, Nolan Queen, the original proponent, filed a motion, which, omitting the formal parts, reads:

"Now comes Nolan Queen in person, and moves the Court that he be permitted to withdraw as a party to this suit and as the proponent of said will herein offered for probate.

"I hereby decline to act as executor under said will and decline to prosecute this suit or action and hereby disclaim any and all interest in and to the property involved herein and all rights under said will, and hereby allege that I have no interest in the subject matter of this suit."

The court heard the above motion and entered judgment sustaining it. The order recites the hearing and appearance of movant, the interveners and contestant. Relating to contestant, the order reads: "And the contestant agreeing thereto in open court." The order decrees that Nolan Queen be dismissed as a party to the suit by virtue of his motion and the recitations in the will; and it was found and decreed that by virtue of his disclaimer of all property rights or interests in the subject matter, and his declination to serve as executor, that all rights and interests therein be divested out of him, and that the interveners be allowed and ordered to prosecute the case to conclusion under the cause style of Janet Reynolds Howard et al., proponents, v. A. B. Combs, contestant, No. 9350.

Additional pleadings by way of amendments were filed by all parties, subsequent to the above order, but they are substantially, insofar as this appeal is concerned, the same as above indicated.

In accordance with the reversal by this court on the former appeal, the case was again tried to a jury on special issues, April 13th, 1938. The verdict was favorable to proponents and judgment was entered admitting the will to probate, which judgment was certified to the probate court of Parker County, Texas, for observance. Application for new trial was overruled and contestant has appealed.

This appeal is predicated upon what may well be classed as two general propositions, they being: (1) Since the evidence shows that the instrument sought to be probated was a carbon copy of the original will, and that the original was caused by testatrix to be burned, she thereby revoked the will, and the copy could not be probated; (2) that the court erred in admitting in evidence the testimony of Nolan Queen, the person shown to have been named as the independent executor of the will concerning transactions had between him and testatrix, as well also those between him and W. H. Reynolds, the deceased husband. It is contended that but for these alleged errors, an instructed verdict should have been given.

At the time the proposed instrument was written, it is evident that another one identically like it was made on a typewriter. One was made from the impression of the letters on the machine against an inked ribbon, while the other was the result of the types being impressed upon a sheet of carbon paper. The latter was offered for probate in this case. Both were executed by testatrix simultaneously; that is, they were executed upon the same occasion. It does not appear which in fact was signed first in point of time. We believe and so hold that the instrument proposed was for all purposes an original will, even though made by means of a carbon paper, and does not fall within the rules requisite to process and making proof of wills not produced with the application for probate. So far as we know, the one offered in evidence was executed last. The necessary proof and authenticity of the instrument as to its being the last will of testatrix, was made; the evidence of the subscribing witness states: "And she (testatrix) declared the said will so made to be her last will and testament." We can see no reason why it would become important as to which of the two instruments was executed first. The one offered was in regular form and upon its face appears regular. If she had made another will subsequently and thereafter destroyed it, the destruction by her would not necessarily mean that she desired to revoke the one proposed; but only that she revoked the one destroyed.

It is not contended by contestant that the destruction by testatrix of a subsequently made will would have the effect to revoke a previous one, but it is contended that since both instruments were identical and made simultaneously, the destruction by testatrix of one revoked both. In connection with the history of the transaction, as to when and why the will was written, as testified to by Mr. Queen, it was disclosed that testatrix was especially anxious that her relatives should not know that she had made a will, and that Mr. Queen, as was his custom, made them in duplicate originals, and from this testimony it may be said that the two instruments were identical. The evidence indicates that the attorney, testatrix, and the two subscribing witnesses were the only persons who knew at the time that a will had been made. It is also true that testatrix sent one of the subscribing witnesses to the lawyer's office and obtained one of the instruments and later caused the witness, ...