Craft Estate, In re

• Decision Date: 11 June 1962
• Docket Number: No. 7158,7158
• Citation: 358 S.W.2d 732
• Parties: In re C. P. CRAFT ESTATE.
• Court: Texas Court of Appeals

Page 732

358 S.W.2d 732

In re C. P. CRAFT ESTATE.

No. 7158.

Court of Civil Appeals of Texas, Amarillo.

June 11, 1962.

Rehearing Denied July 2, 1962.

Morehead, Sharp & Boyd, Plainview, for appellant.

Stone & Stone, Amarillo, for appellee.

DENTON, Chief Justice.

This is an appeal from a judgment of the trial court admitting to probate a writing offered as a codicil to the will of C. P. Craft. Mr. Craft died September 20, 1960. His last will was dated May 3, 1956 and it was admitted to probate on October 13, 1960, with his surviving wife, daughter and grandson being the beneficiaries. Thereafter on March 2, 1961, Mrs. Iva Rippstein filed an application to probate the instrument involved here as a codicil to the above mentioned will of C. P. Craft. This application was duly contested by the executors and beneficiaries under the will. Both the county court and the district court admitted the tendered writing to probate as a codicil.

The writing was in the form of a letter written in Craft's own handwriting, addressed to Mrs. Rippstein. It was dated September 17, 1960, three days prior to Mr. Craft's death. The material parts of the letter read as follows:

'Dear Mrs. Iva: Used most of yesterday terday and day before to 'round up' my financial affairs, and to be sure I knew just where I stood before I made the statement that I would send you $200.00 cash the first week of each month for the next five years, also to send you $200.00 cash for Sept., 1960, and thereafter send that amount in cash the first week of the following months of 1960, October, November and December.'

In the left-hand margin beside the preceding paragraph, the following words were written:

'I have stricken out the words 'provided I live that long' and hereby and hereunto bind my estate to make the $200.00 monthly payments provided for on this Page One of this letter of 9-17-60.'

Although one of appellant's points of error deals with Article 3716, Vernon's Ann.Civ.St., commonly referred to as the Dead Man's Statute, the principle question to be determined is whether or not the instrument is testamentary in character. There was no question of Craft's testamentary capacity, fraud or undue influence.

A written will is generally defined as an instrument by which a person makes a disposition of his property, to take effect after his death, and which by its own nature is ambulatory and revocable during his lifetime. Williams v. Noland, 10 Tex.Civ.App. 629, 32 S.W. 328 (error refused); Maxey v. Queen (Tex.Civ.App.) 206 S.W.2d 114 (refused n.r.e.); Huffman v. Huffman (Tex.Civ.App.) 329 S.W.2d 139, affirmed 161 Tex. 267, 339 S.W.2d 885; Harper v. Meyer (Tex.Civ.App.) 274 S.W.2d 904 (refused n.r.e.). We are not concerned here with Craft's intention or the meaning of the language used in the letter. The question is whether the writing itself meets the requirements of a testamentary document. If it is not of a testamentary character it cannot be admitted to probate. Langehennig v. Hohmann, 139 Tex. 452, 163 S.W.2d 402; Boyles v. Gresham, 153 Tex. 106, 263 S.W.2d 935.

It is our opinion that the writing involved here does not meet the requirements of a testamentary document. By its own terms the payments of $200.00 monthly became effective immediately rather than at the death of Mr. Craft. The payments were to begin in September, 1960, the month the letter was written and the following sentence appears in the letter after the above quoted portion: 'You will find the $200.00 in question for Sept. 1960 enclosed herewith.'

It is well settled that one of the essential characteristics of a will or codicil is that it operates to transfer the maker's property on the occurrence of his death. 44 Tex.Jur., page 542, Sec. 2 and cases cited therein; 40 A.L.R.2d, page 718, Sec. 8, states the rule:

'To be testamentary an instrument must intend a revocable disposition of property to take effect at the maker's death. A letter, therefore, which seeks to make a present disposition, while it may constitute a valid gift inter vivos, cannot be considered testamentary in character.'

The language of the writing in issue obviously creates a right in the promisee...