Covington v. McDonald, 6996
| Decision Date | 19 November 1957 |
| Docket Number | No. 6996,6996 |
| Citation | 307 S.W.2d 335 |
| Parties | J. B. COVINGTON, Appellant, v. Mrs. Mary McDONALD, Appellee. |
| Court | Texas Court of Appeals |
Earl R. Parker, J. Lee Zumwalt, Burt Barr, Dallas, for appellant.
Leake, Henry, Golden & Burrow, Geo. Garrison Potts, Duncan Boeckman, Hartman Hotz, Dallas, for appellee.
This is a will contest case. On February 15, 1943, William L. Covington, now deceased, a career Army sergeant, executed his written will at Camp Shelby, Mississippi, naming his first cousin, Mrs. Mary McDonald, the appellee Herein, as his executrix, with her son, Laurie Arnold McDonald, as his beneficiary. The execution of the will was witnessed by the attesting witnesses, H. H. Harmon and Earl D. Britton, and all of the legal formalities requisite to make it a valid will were observed, and the testator declared at the time of its execution that it was his last will and testament. Testator died on July 5, 1952, at Fitz-Simmons General Hospital in Denver, Colorado, leaving no wife or direct descendants but only a number of first cousins as his nearest surviving relatives. The estate had been largely reduced to funds in savings and loan associations in Dallas, Texas, and Mrs. McDonald filed application in the Probate Court of Dallas County, Texas, for probate of said will, which application was contested by J. B. Covington, appellant herein, who was another first cousin of the deceased testator. The will was duly probated in the Probate Court and appellant appealed to the District Court of Dallas County, Texas, 14th Judicial District of Texas. Upon trial in the District Court the will was produced in court and it was wholly unmarked, without any alterations; no subsequent will or revocation in writing by the testator was produced or offered in evidence, nor were the contents of any alleged subsequent will or alleged written revocation ever offered in evidence in the case. Appellee offered testimony to the effect that the will had not been revoked so far as known to the testifying and attesting witness Harmon. Appellant offered no evidence of probative force that the will had been revoked. The trial court granted the motion of appellee for an instructed verdict, withdrew the case from the jury, and rendered judgment probating the will in question, revoking and cancelling letters of administration previously granted, and granted letters testamentary to appellee, Mrs. McDonald. J. B. Covington, the appellant, has appealed.
By his first point appellant contends that there was evidence that the testator executed the will in question without testamentary intent. In this connection he contends that testator Covington was required by the U. S. Army to make a will. We have carefully examined the record and find no evidence which will support appellant's contention in this respect. Appellant's first point is overruled.
By his second point, appellant contends that there was evidence that testator Covington, by a declaration in writing, revoked the will in question. By his fourth point appellant contends that the trial court erred in refusing to admit in evidence a certain 'blueback manuscript cover' on which W. L. Covington (allegedly) in his own handwriting, had endorsed as his 'last will.' By his fifth and sixth points appellant contends that the evidence established that testator Covington had revoked the will in question and that there was no evidence that testator Covington had not revoked the will in question.
Section 63 of the Texas Probate Code, V.A.T.S. (formerly Article 8285, Vernon's Tex.Civ.St.), provides:
In Baptist Foundation of Texas v. Buchanan, Tex.Civ.App., 291 S.W.2d 464, 472, wr. ref., n.r.e., it is stated:
The alleged blue-back manuscript cover in question was never produced in court of offered in evidence--it does not appear in the statement of facts or in any bill of exception. The vague and uncertain secondary references to said alleged blueback manuscript cover cannot under this record be construed as any evidence of probative force of any revocation of the written will in question.
Also the letter from the deceased testator to Mrs. Ercell Evans is not a written revocation of the will in question. This letter consists in the main of family news and opinions of the writer. Appellant in his brief does not specify what portion of said letter he is relying on to constitute a revocation. Apparently the language he is relying on reads as follows: 'I'll handle those in Memphis who won't profit a d_____ bit with my death, if Uncle Sam is not served.' We hold that the letter in question does not constitute a revocation of the will in question, nor does it constitute any evidence of probative force of any revocation of the will in question. See Redmond v. Redmond, Tex.Civ.App., 127 S.W.2d 309, wr. ref.
We have carefully reviewed the record in this case and have reached the conclusion that the evidence established that the will in question had not been revoked and that there was no evidence of probative force to the contrary sufficient to raise a jury issue on revocation. The will was produced in court in an unmarked and unmutilated condition and was unattended by any circumstances which would cast suspicion on it. By deposition H. H. Harmon testified that he witnessed the execution and the said William L....
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Morris' Estate, In re
...Russ, 209 S.W.2d 630 (Tex.Civ.App.1948); Baptist Foundation of Texas v. Buchanan, 291 S.W.2d 464 (Tex.Civ.App.1956); Covington v. McDonald, 307 S.W.2d 335 (Tex.Civ.App.1957); Bell v. Burton, 370 S.W.2d 18 (Tex.Civ.App.1963), modified, 380 S.W.2d 561 (Tex.1964); Huckaby v. Huckaby, 436 S.W.2......
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...in writing must prove the subsequent instrument was executed with the same formalities that are required to probate a will. Covington v. McDonald, 307 S.W.2d 335, 337 (Tex.Civ.App.--Texarkana 1957, no writ); Wells v. Royall Nat'l Bank, 249 S.W.2d 695, 698 (Tex.Civ.App.--Galveston 1952, writ......
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