Estate of Glover, Matter of, 07-87-0050-CV

• Decision Date: 09 November 1987
• Docket Number: No. 07-87-0050-CV,07-87-0050-CV
• Parties: In the Matter of the ESTATE OF Grace GLOVER, Deceased.
• Court: Texas Court of Appeals

Page 197

744 S.W.2d 197

70 A.L.R.4th 311

In the Matter of the ESTATE OF Grace GLOVER, Deceased.

No. 07-87-0050-CV.

Court of Appeals of Texas,

Amarillo.

Nov. 9, 1987.

Rehearing Denied Dec. 10, 1987.

Bird & Bird, Richard D. Bird, Childress, for appellant.

Wolfram Law Firm, Walter P. Wolfram, Amarillo, for appellee.

Before REYNOLDS, C.J., and COUNTISS and BOYD, JJ.

BOYD, Justice.

Appellants W.I. Bennett, Bill G. Bennett, Mert Glover, Virginia Glover, Robina Patterson, Bernice Darkow, Lois Troxel, Gwendolyn Lindblatt, Margie Kane, Opal Agee, Mary Jones, Patricia Hudson, Janice Glover, Janie Glover Reeves, and Shirley Glover, as the intestate heirs of Grace Glover, deceased, bring this appeal from a judgment of the Potter County Court at Law admitting to probate a will of Grace Glover dated February 24, 1982, and known as the "Brown Will." In this will, appellee Texas Scottish Rite Hospital for Crippled Children was the beneficiary of Ms. Glover's largess. We affirm the judgment of the trial court.

Grace Glover died on August 19, 1985. Between February 24, 1982, and August 12, 1985, she executed by signature or mark at least three out of four written instruments that had been prepared for her to sign as her last will and testament. These instruments were given nicknames for easy identification during the trial. They are as follows:

1. A will dated February 24, 1982, known as the "Brown Will" after the attorney, Carroll Brown, who drew it. In this will all of the property was left to appellee. All parties agree that this will was duly executed.

2. A will dated July 18, 1985, designated as the "McCoy Number One Will" after the attorney who drew it. In this will, also, all of Ms. Glover's property was left to appellee, but a different executor, Jim Hutchins, was named.

3. A will dated July 18, 1985, also drawn by David McCoy and known as the "McCoy Number Two Will." This will basically left all properties to appellee after a five-year delay. Jim Hutchins was also appointed independent executor in this will.

4. A will dated August 12, 1985, named as the "Hays Will" after the attorney, Clyde Hays, who drew it. In this will substantial properties were left to Jim Hutchins' son, Kelly, and to appellee. Jim Hutchins was also named as independent executor in this will.

This action originated by Jim Hutchins' filing of the "Hays Will" for probate.

Appellee contested the application for probate of the "Hays Will" and sought probate of the "Brown Will" and, alternatively, probate of the "McCoy Number One Will" and, as a second alternative, probate of "McCoy Number Two Will." Appellants contested the probate of any of the above wills. As might be expected, an extensive jury trial developed. To the questions relevant to this appeal propounded to it, the jury answered as follows:

Issue No. 1: The "Hays Will" dated August 12, 1985, was not signed by her as her last will and testament.

Issue No. 2 was conditioned upon an answer to issue one that the instrument was signed by decedent as her last will and testament. Hence, it was not answered.

Issue No. 3: The "Hays Will" was not attested and subscribed by the witnesses in the presence of Grace Glover.

Issue No. 4: Grace Glover did not intend the "Hays Will" to be her last will and testament.

Issue No. 5: The "Brown Will" cannot by any reasonable diligence be produced in court.

Issue No. 6: Grace Glover possessed testamentary capacity at the time of the execution of the "Brown Will."

Issue No. 7: The "Brown Will" was attested and subscribed by the witnesses in the presence of Grace Glover.

Issue No. 8: Grace Glover signed the "Brown Will" with the intent that it would be her last will and testament.

Issue No. 8A: The "Brown Will" was not revoked by Grace Glover prior to her death.

Issue No. 9: The "McCoy Number One Will" cannot be produced in court by any reasonable diligence.

Issue No. 10: Grace Glover did not possess testamentary capacity at the time of the execution of the "McCoy Number One Will."

Issue No. 11: The "McCoy Number One Will" was attested and subscribed by the witnesses in the presence of Grace Glover.

Issue No. 12: Grace Glover did not sign the "McCoy Number One Will" with the intent that it be her last will and testament.

Issue No. 13: There was no jury answer to the question as to whether the "McCoy Number One Will" was revoked by Grace Glover prior to her death.

Issue No. 14: The "Brown Will" was last seen in the possession of Grace Glover or accessible to her.

Issue No. 15: The "McCoy Number One Will" was not last seen in the possession of Grace Glover or accessible to her.

No issues as to the "McCoy Number Two Will" were submitted to the jury. In answer to other issues propounded to it, the jury also found that appellants had acted in good faith in filing their contest and appellee acted in good faith in offering for probate the "Brown Will" and the "McCoy Number One Will."

Both parties agree that the question in this case is whether the evidence is sufficient to support the jury finding, given effect by the trial court, that the "Brown Will" was not revoked by Grace Glover prior to her death. We think it is and affirm the judgment of the trial court.

Appellants, in their first three points, contend that the trial court erred in failing to disregard the jury's finding that the "Brown Will" was not revoked because (1) there was no evidence to support the jury finding, (2) there was insufficient evidence to support that finding, and (3) that finding is so against the overwhelming preponderance of the evidence as to be manifestly unjust. Appellants also contend in their fourth point that the trial court erred in admitting the "Brown Will" to probate because there was no clear and convincing evidence overcoming the presumption that the will had been revoked. In their fifth point they say the "Brown Will" should not have been probated because "the evidence was uncontroverted that when said will was last seen or accounted for, it was in the actual possession of Grace Glover" and could not be found after her death.

Initially, we note that the jury findings that the "Brown Will" was last seen in the possession of, or accessible to Grace Glover, and that that will could not by the exercise of reasonable diligence be produced in court, are not attacked by either side in this appeal. Moreover, both sides agree that where the will of a testator was last seen in the possession of a testator or in a place where the testator had ready access to it, then the failure to produce such a will after the testator's death raises a presumption that the testator has destroyed the will with the intention to revoke it and that, under such circumstances, the proponent of the will has the burden of proof to overcome or negative such presumption by competent evidence. Cable v. Estate of Cable, 480 S.W.2d 820, 821 (Tex.Civ.App.--Fort Worth 1972, no writ).

Both sides, however, differ as to the standard by which the sufficiency of the rebutting evidence should be measured. Appellee says that the correct standard is the usual civil preponderance of the evidence standard. Appellants, however, citing the statement from this Court in Bailey v. Bailey, 171 S.W.2d 162, 168 (Tex.Civ.App.--Amarillo 1943, no writ), that the presumption may be "overcome only by clear and convincing evidence," say that such proof must meet that evidentiary standard. The statement of the Bailey Court has been cited with approval in such cases as Pipkin v. Dezendorf, 618 S.W.2d 924, 925 (Tex.Civ.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.); Berry v. Griffin, 531 S.W.2d 394, 397 (Tex.Civ.App.--Houston [14th Dist.] 1975, writ ref'd n.r.e.); and Dodd v. Peoples National Bank, 377 S.W.2d 760, 762 (Tex.Civ.App.--Texarkana 1964, no writ).

The difference is material, for a clear and convincing standard is an intermediate one falling between the preponderance standard of ordinary civil proceedings and the beyond a reasonable doubt standard of criminal proceedings, and is defined as "that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." See State v. Addington, 588 S.W.2d 569, 570 (Tex.1979). Application of that standard would also require application of a more onerous intermediate appellate standard of review. That standard has been articulated as requiring the appellate court not to determine whether the trier of fact could reasonably conclude that the existence of a fact is more probable than not, as in ordinary cases, but whether the trier of fact could reasonably conclude that the existence of the fact is highly probable. See Neiswander v. Bailey, 645 S.W.2d 835, 836 (Tex.App.--Dallas 1982, no writ).

As related to this type of proceeding, however, we believe the Court's decision in State v. Turner, 556 S.W.2d 563 (Tex.1977), cert. denied, 435 U.S. 929, 98 S.Ct. 1499, 55 L.Ed.2d 525 (1978), is fatal to appellants' contention. In that decision, the Court had occasion to consider similar language to that used by the Bailey Court by other courts. In that case, the Court pointed out that the general rule in civil cases was that the party having the burden of proof must establish the case by a preponderance of the evidence. In a thorough discussion of the types of cases in which such language was used and the historical origin of that type of phrasing, the Court cited with approval its prior statement in Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950), in which it characterized that language as "but an admonition to the judge to exercise great caution in weighing the evidence." Id. at 565. The Court concluded that, while some courts in other jurisdictions make a distinction between the standard of clear and convincing evidence and the usual civil standard of the preponderance of the evidence, as a general rule, Texas Courts review evidence by but two standards; those being...