Halamicek v. Halamicek

• Court: Texas Civil Court of Appeals
• Writing for the Court: BISSETT
• Citation: Halamicek v. Halamicek, 542 S.W.2d 246 (Tex. Ct. App. 1976)
• Decision Date: 30 September 1976
• Docket Number: No. 1033,1033
• Petition History: writ ref'd n.r.e.
• Parties: Fred HALAMICEK et al., Appellants, v. Roy Edward HALAMICEK, Appellee.

Page 246

542 S.W.2d 246

Fred HALAMICEK et al., Appellants, v. Roy Edward HALAMICEK, Appellee.

No. 1033.

Court of Civil Appeals of Texas Corpus Christi.

Sept. 30, 1976.

Rehearing Denied Oct. 28, 1976.

W. T. Miller, Miller & Miller, Gonzales, for appellants.

Andrew Gary, Morgan, Gary & Klossner, San Marcos, for appellee.

OPINION

BISSETT, Justice.

This is a suit to set aside the probate of the holographic will of Roy Edward Halamicek, Sr., Deceased, on the ground that such will had been revoked by a later holographic will. Trial was to a jury. The judgment set aside the probated will. Fred Halamicek and Eddie Halamicek, defendants, have duly and timely perfected an appeal from that judgment.

Roy Edward Halamicek, Sr., hereinafter referred to as 'decedent', died on April 19, 1972. He was survived by two natural sons, Roy Edward Halamicek, Jr. (the plaintiff), and Henry Irving Halamicek, and by an adopted daughter, Cindy Mabrey. They constituted his sole and only heirs at law. Fred Halamicek (a brother of the decedent) filed a holographic will of the decedent for probate shortly after the decedent's death. That will, dated September 16, 1963, was duly admitted to probate by the County Court of Gonzales County, Texas, on May 8, 1972. Fred Halamicek qualified as Administrator with will annexed of the decedent's estate.

At the time the will was probated, both of decedent's sons were minors. Roy Edward Halamicek, Jr., upon reaching his majority, brought identical suits in both the District Court and in the County Court (Gonzales County) to set aside the will that had been probated on May 8, 1972, as above stated. The District Court suit was filed on May 6, 1974 and the County Court suit was instituted on September 3, 1974. Fred Halamicek, Individually and as Administrator of the Estate of Roy Halamicek, Deceased, Eddie Halamicek, Henry Irving Halamicek, Cindy Mabrey and Marjorie Hensley were made defendants to the actions brought by the plaintiff.

The defendants Cindy Mabrey and Henry Irving Halamicek, following the removal of his disabilities of minority, expressly adopted the allegations made by Roy Edward Halamicek, plaintiff, in his petition, and further prayed that the probated will be set aside. The defendant Marjorie Hensley, the ex-wife of the decedent and the mother of his two sons, disclaimed any interest in the subject matter of the suit.

The plaintiff, among other allegations, alleged that the probate of the September 16, 1963 will should be set aside on the ground:

'. . . THAT said instrument dated September 16, 1963 had been revoked, either expressly or by implication, by the Decedent, Roy Halamicek, executing a subsequent inconsistent holographic instrument strument as his Last Will and Testament with like formalities which expressly and/or by implication revoked such instrument dated September 16, 1963.'

The County Court suit was transferred to the District Court, where the causes were consolidated. Trial commenced on February 26, 1975. Special Issue No. 1 inquired:

'Do you find from a preponderance of the evidence that after 1963 Roy Halamicek, Sr. executed the instrument testified to by Lucille Herschap intending the same to be and constitute his last will and intending same to revoke all other wills?'

To which, the jury answered: 'We do'.

The judgment, which was signed on May 23, 1975, in part, decreed:

'. . . that the probate of said 1963 will of the decedent, ROY HALAMICEK, in Cause No. 6096 on the probate docket of the County Court of Gonzales County, Texas, should be, and the same is hereby, SET ASIDE AND HELD FOR NAUGHT. It is further ORDERED, ADJUDGED AND DECREED that the said 1963 will has been revoked by the decedent, . . .'

The defendants (appellants) assert in their first point of error that there is 'no evidence that the alleged revoking will was wholly in the handwriting of the decedent Roy Halamicek as pleaded by Appellee'. They contend in their fourth point that 'the judgment of the court should be reversed because the teatimony of Lucille Herschap as to declarations of the decedent, Roy Halamicek, are insufficient to prove either the execution or contents of the alleged revoking will'.

The plaintiff (appellee) contends 'the record in this case abounds with evidence by which the jury might reasonably infer the revoking will was wholly in the handwriting of the decedent', because: 1) the decedent made a prior holographic will in 1963; 2) in a discussion between decedent and Mr. W. T. Miller, an attorney, Miller told decedent to rewrite his will and include certain provisions therein; 3) the decedent telephoned Lucille Herschap and told her that he was making out his will, and later told her in person that he had executed his will; 4) the testimony of Lucille Herschap as to declarations of decedent; 5) the testimony of Mr. Roger Dreyer, an attorney, as to a statement made to him by decedent that he had something written up he wanted Dreyer to look over; 6) it can reasonably be inferred that decedent, as a result of his conversation with Miller, knew that anything but a wholly handwritten will had to be witnessed in order to be valid.

Statutory requirements pertaining to revocation of wills in Texas are set out in our Probate Code as follows:

' § 63. Revocation of Wills

No will in writing, and no clause thereof or devise therein, shall be revoked, except by a subsequent will, codicil, or declaration in writing, executed with like formalities, or by the testator destroying or canceling the same, or causing it to be done in his presence. Acts 1955, 54th Leg., p. 88, ch. 55.'

The statutory method of revoking a valid will is exclusive. Morgan v. Davenport, 60 Tex. 230 (1883); Pullen v. Russ, 209 S.W.2d 630 (Tex.Civ.App.--Amarillo 1948, writ ref'd n.r.e.); Aschenbeck v. Aschenbeck, 62 S.W.2d 326 (Tex.Civ.App.--Austin 1933, writ dism'd); Citizens First National Bank of Tyler v. Rushing, 433 S.W.2d 741 (Tex.Civ.App.--Tyler 1968, no writ).

In order to establish revocation of a will by the execution of a subsequent will that either expressly or impliedly revokes the prior will, it must be shown by a preponderance of the evidence that the revoking will was executed with like formalities of the prior will. The term 'like formalities', as used in the statute, requires proof that the revoking instrument was Validly executed. Womack v. Woodson, 169 S.W.2d 786 (Tex.Civ.App.--Beaumont 1943, writ ref'd).

Since this is a suit to annul the probate of a will already probated, the burden is cast upon the plaintiff to establish by a preponderance of the evidence 'the execution, attended by due formality and legal requirements, of a subsequent instrument, which either expressly or impliedly revoked the former will.' Richardson v. Ames, 2 S.W.2d 517 (Tex.Civ.App.--Eastland 1928, writ ref'd). See also, Chambers v. Winn, 137 Tex. 444, 154 S.W.2d 454 (Tex.Com.App.1941, opinion adopted); Boyd v. Frost Nat. Bank, 145 Tex. 206, 196 S.W.2d 497 (1946); Crane v. Pierce, 257 S.W.2d 510 (Tex.Civ.App.--Dallas 1953, writ ref'd); Ehrhardt v. Ehrhardt, 364 S.W.2d 471 (Tex.Civ.App.--Houston 1963, no writ).

It is well settled rule in this case that while statements made by the decedent to the general effect that he had made a later will are...