Gunn v. Phillips
| Decision Date | 08 December 1966 |
| Docket Number | No. 14929,14929 |
| Citation | 410 S.W.2d 202 |
| Parties | Jess B. GUNN et ux., Appellants, v. N. L. PHILLIPS, Appellee. . Houston |
| Court | Texas Court of Appeals |
R. E. McDaniel, Winnie, Eugene T. Jenson, Anahuac, for appellants.
Joe F. Sandlin, Anahuac, for appellee.
Appellants are the parents and sole heirs at law of George E. Gunn, Deceased, who died on August 8, 1965. On August 10, 1965 appellant, Jess B. Gunn, filed in the County Court of Chambers County, Texas, his application to be appointed administrator of the estate of the said George E. Gunn, Deceased, who he alleged died intestate. On the same day appellee, N. L. Phillips, filed in said court his application to have a purported holographic will of George E. Gunn probated and himself appointed administrator. The County Court consolidated the two cases, admitted the will to probate, and denied the application of Jess B. Gunn. Appellants appealed to the District Court of Chambers County. Based upon the jury finding that the purported will of George E. Gunn, adduced in evidence, is wholly in the handwriting of the said George E. Gunn, the court decreed that the instrument in question is the last will and testament of the deceased, and certified the same to the County Court for observance, and in all things denied the contest of appellants.
A photographic copy of said will is inserted herein for a clearer understanding of the evidence adduced at the trial. It will be noted that the will is undated and that it leaves all of the testator's property to N. L. Phillips or family. The name of the devisee, N. L. Phillips, is not written in longhand but is printed by hand. That is, it is formed or written in letters like those of type.
The law is well settled in this State that the one offering a holographic instrument for probate must establish that it is wholly in the handwriting of the testator, and that this burden may be met by evidence of two witnesses to the handwriting of the testator. Ward v. First-Wichita Nat. Bank, Tex.Civ.App., 387 S.W.2d 913, writ ref., n.r.e.; Thomason v. Gwinn, Tex.Civ.App., 184 S.W.2d 542, error ref., w.o.m.; Sec. 84(b), Probate Code, V.A.T.S. The testimony of one witness is not sufficient. McClusky v. Owens, Tex.Civ.App., 255 S.W.2d 939, writ ref.; Dean v. Dickey, Tex.Civ.App., 225 S.W.2d 999, writ ref.; Maul v. Williams, Tex.Com.App., holding approved, 69 S.W.2d 1107.
We have carefully read the statement of facts, and have concluded that as a matter of law appellee has failed to establish by two witnesses that the purported will is wholly in the handwriting of the deceased, as required by the Probate Code and the authorities in this State. The finding of the jury that said purported will is wholly in the handwriting of the said George E. Gunn is not supported by sufficient evidence. Only two witnesses were called to testify with respect to the handwriting of the decedent. Mrs. Inez Banks, Executive Vice President and Cashier of Security State Bank at Anahuac, was shown to be qualified to testify as to the genuineness of the signature of the testator and also as to the writing in the body of the will with the exception of the printed words 'N. L. Phillips'. She testified that the part of the will written out in longhand appeared to be the writing and signature of the deceased. When asked if she was testifying that it appeared to her that the printed name in the body of the will, to wit: 'N. L. Phillips', appeared to be in the testator's handwriting, she testified, 'That I would know.' She also testified that she was not familiar with the printing of the deceased, and was not familiar as far as she knew with any printing that the deceased might have ever done.
Mrs. Faye Penick, a teller in Security State Bank of Anahuac, after looking at the handwriting and the signatures on the instrument, testified that the same appeared to be Mr. Gunn's handwriting and signature. She further testified, however, that she did not recall seeing Mr. Gunn's printing and was not familiar with any printing that he may have ever done. When asked, 'And, then, you cannot testify that that in your opinion is his printing; can you?' she testified:
A You mean this right here?
Q The 'N. L. Phillips'.
A No, but when I spoke before in general of this document I meant the 'N' in 'N. L. Phillips' resembles his writing.
A I don't see anything else in this that--any word that has an L in it that--
Q Then you can not testify that that is his printing; can you?
A No.
When asked if she had an opinion as to whether or not 'N. L. Phillips' in the middle of the page was the printing of George Gunn, she testified that, 'To me the N and the L, since I have looked at this up here where he wrote out in longhand the Phillips, look like his writing.' She repeated that she did not recall ever seeing any of the printing of the testator. She was then asked, 'But as to the actual printing in the middle there, now, looking at that alone, if you saw that anywhere else besides in that instrument, would you have an opinion that it was printing of George Gunn?' to which she answered, 'No'.
The handwriting witnesses were not qualified to testify, and did not testify, that the printing in the body of the instrument was the printing or even appeared to be the printing of the testator because they simply had not seen any of his printing and did not know. In view of the fact that the case must be reversed and remanded because of the insufficiency of the proof, and the possibility of another trial, we quote the following statement from McCormick and Ray's Texas Law of Evidence, Vol. 2, Sec. 1434, pp. 289--290:
Appellants also contend that since the alleged will...
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Scott v. Schwartz
...by law. Sections 59, 60 and 63, Texas Probate Code; Adams v. Maris, 213 S.W. 622 (Tex.Com.App.1919); 2 Gunn v. Phillips, 410 S.W.2d 202 (Tex.Civ.App.--Houston 1967, writ ref'd n.r.e.); Dean v. Dickey, 225 S.W.2d 999 (Tex.Civ.App.--El Paso 1949, writ ref'd); Pullen v. Russ, 209 S.W.2d 630 (T......
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...of will on procedural grounds). Texas also does not require that holographic wills be dated. Gunn v. Phillips, 410 S.W.2d 202, 207 (Tex.Civ.App.--Houston 1966, writ ref'd n.r.e.). In jurisdictions that similarly recognize holographic wills, it is generally held that when a holographic will ......
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...instrument was "wholly in the handwriting of the testator." TEX. PROB.CODE ANN. § 84(b) (Vernon 2003); Gunn v. Phillips, 410 S.W.2d 202, 205 (Tex.Civ.App.-Houston 1966, writ ref'd n.r.e.). The testimony of two of the witnesses, Lloyd Fowler and Faye Shipman, an expert, was clear, direct and......
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Trim v. Daniels, 01-91-00046-CV
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