Davis v. Roach

• Decision Date: 21 February 1940
• Docket Number: No. 8896.,8896.
• Citation: 138 S.W.2d 268
• Parties: DAVIS et al. v. ROACH et al.
• Court: Texas Court of Appeals

138 S.W.2d 268

DAVIS et al. v. ROACH et al.

No. 8896.

Court of Civil Appeals of Texas. Austin.

February 21, 1940.

Rehearing Denied March 20, 1940.

Appeal from District Court, Lampasas County; Few Brewster, Judge.

Proceeding by Mattie Pearl Davis and others, opposed by John Roach and others, for probate of a lost will. From a judgment denying admission of the will to probate, proponents appeal.

Affirmed.

Walker & Hammett, of Lampasas, and Stinson, Hair, Brooks & Duke, of Abilene, for appellants.

Cox & Hayden, of Abilene, for appellees John Roach et al.

J. Tom Higgins, of Lampasas, and A. R. Eidson, of Hamilton, for appellees Violet Roach and J. L. Buttrell.

BLAIR, Justice.

Appellant Mrs. Mattie Pearl Davis made application under the terms of Art. 3349, Rev.St. to probate the written will of Patrick J. Roach, deceased, alleging that it had been lost or destroyed but not revoked; that it made certain disposition of the property of testator; and that proponent was a beneficiary and named executrix of the will. Appellees, the heirs at law of testator, including his widow, contested the application; and after a hearing the will was admitted to probate. Contestants appealed to the district court, where at the conclusion of proponent's evidence, the court instructed a verdict for contestants, and accordingly rendered judgment denying the will to probate; hence this appeal.

The trial court interpreted the evidence as showing that the will was in the possession or accessible to the testator at all times prior to his death and could not be found by diligent search after his death; and held that the presumption of law obtained that the testator had himself destroyed the will during his lifetime, with intent to revoke it; and that proponent failed to rebut this presumption by competent evidence. This rule of law is settled in this state. McElroy v. Phink, 97 Tex. 147, 76 S.W. 753; Aschenbeck v. Aschenbeck, Tex.Civ.App., 62 S.W.2d 326.

With the rule proponent does not disagree, but contends that the evidence adduced and other evidence offered, but erroneously excluded by the trial court, were sufficient, if believed by the jury, to rebut the presumption of destruction of the will by the testator with intent to revoke it. We do not sustain this contention.

An attorney, J. C. Abney, testified that he drew a will for Patrick J. Roach about September, 1927, which Roach executed in the manner required by law. Witness and his father, W. B. Abney, signed the will as attesting witnesses, and it was then delivered to Roach, and witness never saw it thereafter. Witness also testified to his recollection of the contents of the will.

W. W. Tippen, who at the time operated a national bank at Lometa, Texas, and with which bank Roach did business, testified in substance that about the year 1927 Roach brought his will to the bank and requested him to read it and to make some explanations of its provisions, which he did. Roach kept some private papers in a green metal box in the vault of the bank used by its customers for keeping private papers. After reading the will Roach requested witness to place it in the green box, which he did. The box had a lock on it, and witness kept one key to it in his desk at the bank and Roach kept another key. Roach could have obtained the box at any time by requesting witness or any employe of the bank to get it for him. The bank failed in the year 1931, at which time witness left the bank, and its affairs were turned over to a receiver. Witness testified that the box in which he placed the will was left in the vault, and was there when he turned the bank's affairs over to the receiver, and witness never saw the will after he placed it in the box. Witness also testified to his recollection of the contents of the will, which differed in some respects from the contents testified to by the attorney who drew the will; but there can be no question that the will which these two witnesses described was the same will. No other witness ever saw the will. By it proponent was made executrix and was left a large portion of the estate of testator. A diligent search was made for the will after the death of testator by his brothers and the husband of proponent, but it was not found. A dark green metal box was found by them at a merchandise store in Lometa, which they receipted for as a locked box belonging to testator. It contained other papers of testator, but not his will.

These facts adduced by proponent bring the case clearly within the rule stated, and standing alone and unexplained require and sustain the conclusion of the trial court that the alleged lost or destroyed will was not admissible to probate. McElroy v. Phink, supra; Aschenbeck v. Aschenbeck, supra; Clover v. Clover, Tex.Civ.App., 224 S.W. 916, 920; Buchanan v. Rollings, Tex.Civ.App., 112 S.W. 785; Rape v. Cochran, Tex.Civ.App., 217 S.W. 250; and Shepherd v. Stearns, Tex.Civ.App., 45 S. W.2d 246.

But proponent contends that the presumption of revocation from the facts of disappearance of the will and the possession or control thereover by the testator does not arise or is rebutted in the instant case because the evidence showed that the will was in the possession of a person other than the testator prior to his death. This contention is predicated upon the facts that testator left the will in his locked box in the vault of the bank and left a key thereto with Tippen at the time he was in charge of the bank. This contention assumes, contrary to the evidence, that the will was last in the possession of Tippen, or later the receiver. The will was in the locked box of the testator, which was deposited in the vault of the bank used by its customers for that purpose, and all testator had to do to get actual physical possession of the box containing the will was to ask Tippen or any employe of the bank for it. No one was authorized or shown to have taken the will from the locked box of testator, or to have had any opportunity to have done so. He alone had control of and access to it under the evidence adduced. These facts bring the case clearly within the rule that the presumption that testator revoked his will arises when it was in his possession or "accessible" to him and cannot be found after his death. This rule of accessibility to the will by testator has been approved by the Texas courts in the application of presumption of revocation doctrine. Clover v. Clover, Tex.Civ.App., 224 S.W. 916; Aschenbeck v. Aschenbeck, Tex.Civ.App., 62 S.W.2d 326; Shepherd v. Stearns, Tex. Civ.App., 45 S.W.2d 246. It is also the rule in numerous other states. See 34 A.L. R. 1309, and cases there cited.

The court admitted the testimony of W. C. Roach, a brother of proponent, to the effect that he heard testator tell his (testator's) father that he expected to leave the bulk of his estate to proponent, who was testator's niece and whom he had partly reared and was very fond of. Aaron Cummings also testified that testator told him "long before (testator) was married" that he expected to leave the bulk of his estate to proponent. These statements attributed to testator were admitted as tending to show his affection for proponent and his intention to leave her the bulk of his property. But these statements were made long before testator made the will and long before he married, and they are not of such probative value as would overcome the presumption of revocation rule above stated, because they had no relation to the fact that the will which was subsequently executed could not be found after testator's death. And certainly standing alone this testimony was not sufficient to overcome the presumption that testator had destroyed the will with intent to revoke it.

Proponent, however, proffered the testimony of James A. Davis, her husband, to the effect that in July or August of 1936, preceding testator's death in October, 1936, he told witness that witness need not pay the balance of his note to testator because Mattie Pearl (proponent) would get his property anyway under his will. That testator also told witness on this occasion that things were not going well between himself and his wife, because she had not lived up to her promises, in that she had not joined the Catholic Church as she had promised him; and that she had brought all of her children by a former marriage to testator's home, which she had promised not to do; and that early in 1936 testator told him that he feared for his life and was afraid to stay at home. Witness also offered to testify that between the years 1927 and 1936 testator told him on several occasions that his will took care of Mattie Pearl (proponent), because he loved her and had raised her as his own child. This testimony was proffered as tending to show testator's affection for proponent and as tending to show that she was a beneficiary of his will; and that he had no intention at said times of revoking it. The testimony was excluded as being contrary to the provisions of Art. 3716, which provides that: "In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall...