Dougherty v. Holscheider

• Court: Texas Court of Appeals
• Writing for the Court: Fly
• Citation: Dougherty v. Holscheider, 88 S.W. 1113, 40 Tex.Civ.App. 31 (Tex. App. 1905)
• Decision Date: 07 June 1905
• Petition History: writ dism'd
• Parties: DOUGHERTY et al. v. HOLSCHEIDER et al.

Page 1113

88 S.W. 1113

DOUGHERTY et al. v. HOLSCHEIDER et al.

Court of Civil Appeals of Texas.

June 7, 1905.

Appeal from District Court, Duval County; Stanley Welch, Judge.

Consolidated proceedings by Lillie Holscheider and others and by J. R. Dougherty and another for the probate of the will of Raf Welder, deceased. From a judgment admitting to probate the will offered by Lillie Holscheider and others, J. R. Dougherty and another appeal. Reversed.

Rehearing denied October 4, 1905.

Dougherty & Dougherty, J. O. Luby, and J. C. Scott, for appellants. D. McNeill Turner, for appellees.

FLY, J.

On July 20, 1904, Lillie Holscheider applied to the county court of Duval county for the probate of a will executed by Raf Welder, on February 21, 1900, in which he bequeathed to his two children, Mary and Duncan, the sum of $10 each, to his sister, Mary O'Connor, his entire interest in his father's estate, and to Lillie Holscheider, then Lillie Ramey, all the balance of his property, consisting of over 20,000 acres of land and personal property. Lon C. Hill and B. W. Klipstein were the independent executors named in the will. On July 21, 1904, Mrs. Mary O'Connor and James R. Dougherty applied for the probate of a will alleged to have been executed by Raf Welder, who died on February 7, 1904, and of which James R. Dougherty had been appointed executor. That will consisted of two letters, written by Raf Welder to Dougherty, which are as follows:

               "Hebronville, 4—12, 1902
                

"Mr. J. R. Dougherty, Beeville—Dear Sir & Friend: Yours of yesterday to hand, and in reply will say that I have instructed Mr. John Corrigan to pay you over the money in case you made a settlement. He left here Thursday last for home, and I presume will see you. If he does not show up there, you either send for him or draw a check on him through the bank, or you can drop him a note through the post office. I will write him myself.

"Friend Jim, I am going to start to Montery to-morrow to have a surgical operation performed on me, and possibly I may never get back alive. I will write you full particulars as to what to do with my stuff when I get there. The doctors have said that it would not be dangerous; but, in case anything should happen, I want you to see to what I have left. As I said to you before, I am not satisfied with the way things are going. Will also instruct him pay you balance of your fee. He has just sent me $400.00. This, with what he pays over to you, is all I have received from him. He has never paid any interest on the note whatever. So, thanking you for your kindness in this matter and hoping to see you again some of those bright days, I will say good bye.

  "Your friend,            Raf Welder."
                

         "Monterey, Mexico, 5—6, 1902
                

"Mr. James R. Dougherty, Beeville, Texas—Friend Jim: I wrote you some weeks ago, and told you that I intended undergoing an operation, and that before doing so that I would write you and tell you what to do with my stuff, in case anything happened to me. I expect to be operated on tomorrow. 1st. I owe the First Nat'l Bank of Beeville $154.30, due in July, that I want paid. 2nd. John Corrigan in July will owe me two years' interest on that note, less $822.00. He also is to pay me interest on the amount that was due last July. I want you to attend to it all for me, as though it was your own. 3rd. I want you to finish educating those two girls of Mrs. Ramey's that I have raised, Nellie and Susie, and, after they have been given a thorough education, the remainder I want it to go to my sister, Mrs. Mary O'Connor. At the same time I want you to compensate yourself for your trouble. You will have to be careful with Mr. Corrigan as he is liable to become involved. He owes a great deal of money, while he has enough property to pay out of any ordinary trouble; but you will have to hold the reins over him. Now, Jim, possibly this is asking too much of you; but, as I have known you from boyhood up and your father before you, I have all confidence in your carrying out my wishes. While I don't anticipate any danger, as the Dr. has assured me that there is no danger, yet there might be, and I think this will fully explain to you my wishes. You can write me here on receipt of this. I will close, hoping to hear from you soon, and with best wishes to all inquiring friends, I remain as ever,

  "Your friend,               Raf Welder
                  "P. S. You can address your letters to 66
                San Francisco street, Monterey, N. L., Mexico
                Also tell Brother Klipstein that I have instructed
                you to settle that little matter at the
                bank and not to be uneasy.     Raf."
                

On August 17, 1904, Mrs. O'Connor filed a contest to the application of Mrs. Holscheider to probate the first will of Welder, and by an order of the county court the applications for probate of the two wills were consolidated. The contest of the will was made on the ground of undue influence on the part of Mrs. Holscheider, and on the ground that it had been revoked by the transfer of the lands by Welder after the will was executed and by the execution of a holographic will entirely inconsistent with the terms of the first will. Duncan Welder and Mary Welder, minor children of Raf Welder, through their mother, Mrs. Julia D. Welder, filed a protest against the probate of both wills—against the first on the ground of undue influence, and against the second on the ground that it was dependent on a contingency which did not arise. They stated, however, that, if the first will was held not to have been the product of undue influence, they withdrew all objections to the probate of the second will. The second will was admitted to probate by the county court, and an appeal was taken to the district court, where the first will was probated.

It was proved that the letters, hereinbefore copied, were in the handwriting of Raf Welder, and were signed by him, and were duly received by James R. Dougherty, who had them in his custody from the time of their reception until they were filed in the county court. Raf Welder lived about two years after he wrote the letters. The requisites of a written will, prescribed by Article 5335, Sayles' Ann. Civ. St. 1897, are that it must be signed by the testator, or some other person by his direction, and, if not wholly written by himself, must be attested by two or more credible witnesses above the age of 14 years, subscribing their names thereto in the presence of the testator. Where the will is wholly written by the testator, the attestation of the subscribing witnesses may be dispensed with. Article 5336. The letters written by Raf Welder to J. R. Dougherty have the essentials necessary to constitute a will under the statute, and, unless the will was to take effect only upon the fatal termination of the operation referred to therein, it should have been probated by the district court.

A will which is to become effective only upon the happening of a contingency is a contingent will, and in case the contingency does not arise is by the failure of the happening of the event annulled and revoked. There are numerous cases, English and American, involving the construction of wills in which contingencies were expressed, for it seems to be very common for those unlearned in the law, who write their own wills, to do so under the influence of the fear or expectation of imminent peril and consequent death; but an infallible guide for their construction is difficult to be evolved therefrom. The current of modern authority, however, seems to be that, if the happening of the event is merely referred to as giving the reason or inducement for the making of the will, it be held unconditional; but, if it appears that the testator intended to dispose of his property in case of the happening of the named event, then it will be held to be conditional. The rule is thus stated in the case of French v. French, 14 W. Va. 459: "It seems that it is now an established principle that, while a person may make a conditional will, his intention to do so must appear clearly. The question is whether the contingency is referred to as the reason or occasion for making the disposition, or as the condition upon which the disposition is to become operative." In that case the words used by the testator were: "Let all men know hereby that if I get drowned this morning, March 7, 1872, I bequeath all my property, personal and real, to my beloved wife, Florence." He was about to go on a journey, and had to cross a swollen stream. He was not drowned, but lived for three years thereafter. The court held that the will was not conditional. In the case of Eaton v. Brown, decided by the Court of Appeals of the District of Columbia, and reported in 56 Cent. Law J. No. 9, the testatrix used the following words: "I am going on a journey and may not ever return; and, if I do not, this is my last request." It was held that the will was a conditional one, and, as the maker of it did return, it was not effective. The following cases are cited as sustaining the decision: Parsons v. Lanoe, 1 Ves. Sr. 190; Sinclair v. Hone, 6 Ves. Jr. 607; In re Winn, 2 Perry & Davison, 47; Roberts v. Roberts, 8 Jur. (N. S.) 220; In re John Porter, L. R. 2 Perry & Davison, 22; In re Robinson, L. R. 2 Perry & Davison, 171; Lindsay v. Lindsay, L. R. 2 Perry & Davison, 449; In re Ward, 4 Haggard, 176; in re Todd, 2 Watts & S. (Pa.) 145; Morrow's Appeal, 116 Pa. 440, 9 Atl. 660, 2 Am. St. Rep. 616; Wagner v. McDonald, 2 Har. & J. 345; Maxwell v. Maxwell, 3 Metc. (Ky.) 101; Dougherty v. Dougherty, 4 Metc. (Ky.) 25; Robnett v. Ashlock, 49 Mo. 171; Magee v. McNeill, 41 Miss. 17, 90 Am. Dec. 354.

In most of the cases holding wills dependent on the happening of the condition named, the words "if I never get back," referring to a certain journey, or "should anything happen to me," referring to a particular time or event, were used. In this case the words were: "Friend Jim, I am going to start to Monterey...