Harmon v. Ketchum

• Decision Date: 22 October 1927
• Docket Number: (No. 10077.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 299 S.W. 682
• Parties: HARMON et al. v. KETCHUM.
• Court: Texas Court of Appeals

299 S.W. 682

HARMON et al. v. KETCHUM.

(No. 10077.)^*

Court of Civil Appeals of Texas. Dallas.

October 22, 1927.

Rehearing Denied November 19, 1927.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Application by Margaret A. Ketchum for the probate of the will of Clara W. Gilmer, deceased. Will was adjudged to be valid in both county and district courts, and the contestants, Elizabeth Gilmer Harmon and others, appeal. Affirmed.

W. B. Hamilton and Harmon & Harmon, all of Dallas, for appellants.

Webster Atwell, of Dallas, for appellee.

LOONEY, J.

This appeal is from a judgment of the district court of Dallas county probating the will of Clara W. Gilmer who suicided in the city of Albay, Phil. Islands, in June, 1922. The will was offered for probate by Margaret A. Ketchum, of Augusta, Ill., who is the principal legatee and executrix in the will. The contestants are the heirs at law of the deceased.

The will was contested on the following, among other grounds, viz.: That the instrument was not the last will and testament of the deceased; that it was not excuted according to statutory requirements; that deceased was of unsound mind at the time the same was executed; and that, if in fact executed, it was accomplished as the result of undue influence exercised by proponent over the said Clara.

On hearing, the will was adjudged to be valid in both the county and district courts.

1. The issue as to the mental capacity of testatrix at the time the will was executed was properly submitted to the jury, and their finding, to the effect that she was of sound and disposing mind, being fully sustained by the evidence, is adopted as our conclusion on that issue.

The other propositions urged by appellants will appear from the discussion.

2. The contention is made that the will was not executed with the formality required by the statute (Rev. St. 1925, art. 8283), in that it was not made to appear that the attesting witnesses signed in the presence of testatrix.

After the signature of testatrix, there appears at the foot of the will, over the signature of witnesses, the following:

"The foregoing document consists of two pages in addition to this last, and has been executed on the date above mentioned and signed and published by the testator, Clara Gilmer, who declared in our presence, whom she has summoned, that this same document is her last will and testament; and in the presence of each other, we have signed our names as witnesses of the said testament."

On December 2, 1918, testatrix, who was well known to the parties named below, appeared at the office of Manuel M. Calleja, justice of the peace at Albay, with the document in question already prepared, and said she wished to make her will, because she was afraid of dying from influenza, then prevalent in the province. She called to Jose Arboleda and E. Armero, who were passing, and asked them to witness the will. She said it was her last will and testament, and signed the same in their presence, and in the presence of the justice of the peace and Prudencio Ajero, his clerk.

The persons called by her to witness the will signed the same as witnesses, as well as Prudencio Ajero, the clerk, who, it seems, signed at the request of the witness Jose Arboleda. While it was not made to appear by evidence directed specifically to that fact that the witnesses subscribed their names in the presence of testatrix, yet the conclusion from the facts and circumstances is inescapable that such was the case. Testatrix went to the office of the justice of the peace for the purpose of executing her will. She called in from the street two acquaintances who were passing, told them the document was her last will and testament, requested them to become witnesses to its execution by her, signed the same in the presence of these persons, and the witnesses also signed the will. There is no fact or circumstance indicating that there was a break or hiatus in the proceedings. While there was no finding of the jury on this issue, we hold that the evidence justified a finding by the trial court that the will was in all respects legally executed.

3. The contention is made that the document offered for probate was not the last will and testament of testatrix; that she executed and left a subsequent will that, by implication at least, revoked the former.

This contention is based on a letter written by testatrix, dated June 9, 1922, just before she committed suicide, in which she directed the disposition, apparently, of all her personal effects in the Philippine Islands, consisting of a piano, a trunk, furniture, books, vases, curios, etc. This letter was addressed to her friend Ruivivar, in whose house she lived. The letter was properly executed as an holographic will, and, in our opinion, was testamentary in character. Barnes v. Horne (Tex. Civ. App.) 233 S. W. 859. But did it revoke the will of December 2, 1918? We do not think so. The holographic document contained no language of revocation; made no mention of a prior will; and did not purport to dispose of any property, except the personal effects of testatrix in the Philippine Islands.

In the will of December 2, 1918, proponent was given all personal property then in her possession belonging to testatrix, also 15 acres of land near the city of Dallas, Tex. (of the value, variously estimated, at from $400 to $2,000 per acre); also her interest in certain mining claims in Alaska. She made a number of small bequests of personal effects in the Philippine Islands to certain persons residing there, appointed proponent executrix, without bond, of all her property in America and appointed a Mr. Reyes, of Lucana, Phil. Islands, administrator of all her property in the Islands. She mentioned two suits for the recovery of money then being prosecuted by her, and provided that any moneys accruing to her estate from these suits should be formed into a "Gilmer loan fund," to be under the trusteeship of one Philemon Perez, for the purpose of aiding graduates from certain high schools in the Philippines who, through lack of funds, were unable to obtain a university education. These suits proved futile, as she was defeated in both.

Construing these instruments together, that is, the will of December 2d, 1918, and the holographic instrument of June 9, 1922, we hold that the latter revoked, pro tanto, the former, that is, as to the property belonging to testatrix in the Philippine Islands, but had no effect on other provisions of the will.

It is generally recognized that more than one will may exist at the same time. They should be construed together if such was the intention of testator, and this may be gathered from the contents of the later will. A subsequent will does not revoke a former, unless by its terms it purports so to do, or makes disposition of all testator's property, or is so inconsistent with the former that the two cannot stand together. Jarmon on Wills (6th Ed.) 171; 28 R. C. L. p. 114, § 66; 40 Cyc. pp. 1173-1178; In re Cunnion's Will, 201 N. Y. 123, 94 N. E. 648, Ann. Cas. 1912A, 834; Osburn v. Rochester, etc., Co., 209 N. Y. 54, 102 N. E. 571, 46 L. R. A. (N. S.) 983, Ann. Cas. 1915A, p. 101.

In Re Cunnion's Case, supra, the court used this language:

"A later will is not necessarily a revocation of a prior will, unless by it the prior will is in terms revoked and canceled, or by the later will a disposition is made of all of the testator's property, or the same is so inconsistent with the former will that the two cannot stand together, or that the former will is revoked pro tanto. More than one will may exist at the same time, and they may be construed together, if such was the intention of the testator, and the contents of the later will may be shown to determine the testator's intention."

The same doctrine is announced in 28 R. C. L. p. 114, § 66, as follows:

"Sometimes a testator leaves two or more instruments, each on its face appearing to be a complete will and neither revoking the other, and in such case such instruments should be construed together, if they are not inconsistent and mutually destructive."

Appellants contend, however, that, prior to the execution of the testamentary letter of June 9, 1922, testatrix had disposed of all of her property other than that mentioned therein, and therefore it was a disposition of all property then owned by her.

We cannot assent to this conclusion. It is true she had by a deed in form conveyed the 15 acres of land in Dallas county to Andrew Ketchum, the father of proponent, but the evidence is undisputed that this was intended as a mortgage to secure the payment of money that Ketchum had loaned testatrix. Testator was, therefore, the owner of the land at the time of her death, subject to this mortgage. We are of the opinion, therefore, that the holographic instrument of June 9, 1922, did not revoke the will of December 2, 1918, except pro tanto, and constitutes no barrier to its being probated.

4. The court submitted the issue of undue influence in the following language:

"You are instructed that the burden of proof is upon the contestants to establish the affirmative of question No. 2 by clear and satisfactory evidence."

Special issue No. 2 was as follows:

"Do you find from the evidence that the making and execution of the instrument, which was signed by Clara W. Gilmer on the 2d day of December, 1918, and which is sought to be probated here as her last will and testament, was procured by undue influence on the part of the proponent, Margaret A. Ketchum? Answer `Yes' or `No.'"

To which the jury answered "No."

Appellants objected to this submission, and assign error thereon, contending that the same placed a more onerous burden on contestants than the law authorized.

This contention is in our opinion correct. All the law exacted was that the affirmative of the issue of undue influence should be established by a preponderance of the evidence.

Charges of...