Davis v. Davis

• Decision Date: 20 June 1922
• Docket Number: 10583.
• Citation: 207 P. 1065,86 Okla. 255,1922 OK 214
• Parties: DAVIS ET AL. v. DAVIS ET AL.
• Court: Oklahoma Supreme Court

207 P. 1065

86 Okla. 255, 1922 OK 214

DAVIS ET AL. v. DAVIS ET AL.

No. 10583.

Supreme Court of Oklahoma

June 20, 1922

Syllabus by the Court.

A "holographic will" is one that is entirely written dated and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this state, and need not be witnessed. Section 8347, Rev. Laws 1910.

The burden of proof rests upon the proponents of a will to establish by a preponderance of the evidence that the will was executed and published according to the provisions of the statutes. McCarty et al. v. Weatherly et al. (Okl.) 204 P. 632.

Where a holographic will is offered for probate, and the name of the testator is not signed at the bottom of the will, but appears only in the body of the instrument, evidence showing that the deceased, prior to his death, had made isolated statements to the effect that he had made a will without identifying the paper purporting to be his will, does not meet this proof.

The record examined, and held, that the evidence does not sustain the judgment of the trial court.

Appeal from District Court, Comanche County; Cham Jones, Judge.

Proceeding in the county court by Pearl Davis for the probate of an instrument as the last will and testament of R. B. Davis deceased. From judgment of the district court admitting the will to probate on appeal from the county court, J. P. Davis and others appeal. Reversed and remanded.

Keaton Wells & Johnston, of Oklahoma City, and J. F. Thomas, of Lawton, and Benson & Benson, and Donald & Donald, all of Bowie, Tex., for plaintiffs in error.

S. I McElhoes, of Lawton, for defendants in error.

MILLER J.

This proceeding was instituted in the probate division of the county court of Comanche county, Okl., by Pearl Davis and others, asking for the probate of a certain instrument as the last will and testament of R. B. Davis, deceased, late of Comanche county, Okl. J. P. Davis and the other heirs of R. B. Davis, deceased, except those named as beneficiaries in the will, joined in a protest against admitting the will to probate. The county court refused to admit it to probate. Pearl Davis and his cobeneficiaries appealed to the district court of Comanche county. On a full hearing had before the district court of Comanche county that court, on November 7, 1918, ordered the paper probated as the will of the deceased.

Notice of appeal was given, and this appeal perfected. J. P. Davis and others associated with him objecting to the probate of the will appear here as plaintiffs in error. Pearl Davis and his associates appear as defendants in error, and they will be so referred to.

The plaintiffs in error in their brief refer to their assignments of error as follows:

"The petition in error contains a number of assignments of error, including the assignment so necessary to a consideration by this court, that the court erred in overruling appellant's motion for a new trial, and that the court erred in admitting said will to probate."

The only question discussed is whether or not the court erred in admitting the will to probate. The facts necessary to determine this question may be briefly stated as follows:

R. B. Davis died April 16, 1918, as a resident of Comanche county, Okl., and leaving an estate therein. The defendants in error claim this estate under a holographic will dated August 1, 1901. The plaintiffs in error are the other heirs at law of the deceased. On April 1, 1918, the deceased executed another will which, after making certain specific bequests in amounts of $1, left the estate to the defendants in error. This will was filed for probate, but, it appearing that the witnesses thereto did not sign in the presence of the testator, the proponents of the will did not insist on its being admitted to probate.

Some two months after the death of R. B. Davis the will in question in this case was found in an old trunk which the evidence discloses Davis kept locked, and prior to his death he carried the key. The will in question reads as follows:

"Know all men by these presents that I, R. B. Davis, have this 1st day of August, 1901, made and executed this my will to L. S. Davis and his children, Edgar Davis and Mabel Davis and Claude Davis and Pearl Davis, to take effect at my demise as follows, to wit: All of my land and all of my stock, both horses and cattle, and all of my money, bank deposits, notes promissory and otherwise, and all my house furnishings. In fact all of my incumbrances to be divided equally between all the above named when Pearl Davis, the youngest, becomes of age, and I hereby name L. S. Davis as trustee for this will, and I further enjoin that there be no legal procedure interceded against this document.

Witness my hand this the 1st day of August, 1901. Witness."

This will is not signed at the bottom, but it was shown by opinion testimony of a large number of witnesses to be in the handwriting of the deceased. At least six witnesses who appear to be disinterested testified that the deceased had told them on different occasions that he had made a will and had left his property to Stanhope's children. It is admitted the Stanhope referred to in the testimony of these witnesses was a brother of the deceased and is the one...