Hinson v. Hinson

• Decision Date: 22 June 1955
• Docket Number: No. 5053,5053
• Citation: 154 Tex. 561,280 S.W.2d 731
• Court: Texas Supreme Court
• Parties: J. W. HINSON, Jr., Petitioner, v. Mrs. Ethel Mae HINSON, Respondent.

Page 731

280 S.W.2d 731

154 Tex. 561

J. W. HINSON, Jr., Petitioner, v. Mrs. Ethel Mae HINSON, Respondent.

No. 5053.

Supreme Court of Texas.

June 22, 1955.

Rehearing Denied July 20, 1955.

Hill, Brown, Kronzer & Abraham, W. James Kronzer and W. W. Watkins, Houston, for appellant.

Byron G. McCollough, Houston, for respondent.

WALKER, Justice.

Respondent is the widow, and petitioner is the child by a former marriage, of J. W. Hinson, Sr., who died in Harris County on September 16, 1952. We are required to determine whether two instruments executed by the decedent are entitled to probate, either separately or together, as his last will and testament.

On April 20, 1951, the decedent signed a printed and typewritten instrument, containing a formal introductory paragraph declaring the same to be his last will and testament, wherein he directed the payment of his debts, devised and bequeathed all of his property to respondent for her lifetime, and at her death to be divided equally between petitioner and two other named persons, provided that one-third of the estate should be given to petitioner in the event of respondent's remarriage, conferred upon respondent the power of sale, appointed executors, and revoked all former wills. This instrument also bears the signature and seal of a notary public but is not otherwise attested.

Thereafter the decedent wrote his own handwriting and signed the following on a sheet of hotel stationery:

'Aug. 24, 1951

'Supplementary to my Last Will, it still stands as is.

'to my wife Ethel Mae Hinson. my will is in brief case zipper comp. Copy to wife. Copy to my son J. W. Hinson Jr. Everything is yours Darling. Pay the Home off. Sell my car. Have will probated at once. Go to Judge Ewing Boyd, tell him who you are. He will give you all legal advice needed. He is my friend. Sell all of my guns & things you do not need. Sell the Home if you like. But buy another one where you wish to live. Take care of everything I leave you will need it all.

'I love you Darling so much more than my own life. Bye. J. W. Hinson.'

After the death of her husband, respondent filed in the County Court an application to probate in which she prayed that both writings, or in the alternative the handwritten instrument alone, be admitted to probate as the last will and testament of the decedent. Petitioner contested the application, contending that neither instrument is entitled to probate, because the first is not attested as required by law and because the second was not executed by the decedent with testamentary intent. The judgment of the County Court admitting both instruments to probate having been appealed, the cause was tried de novo in the District Court without the intervention of a jury, the only evidence introduced being the two instruments and certain facts stipulated by the parties. Testamentary capacity was admitted, and there was no question of fraud or undue influence. The parties agreed that the typewritten instrument dated April 20th was in existence in its present form at all times since that date, was found in a separate compartment of decedent's brief case after his death exactly as indicated in the handwritten instrument, and is the document to which reference is made in the latter instrument. The District Court sustained petitioner's contentions with respect to the formal typewritten document, and entered a judgment probating only the holographic instrument dated August 24th. This judgment has been affirmed by the Court of Civil Appeals. 273 S.W.2d 116. It is our opinion that neither instrument can be probated.

An instrument is not a will unless it is executed with testamentary intent. The animus testandi does not depend upon the maker's realization that he is making a will, or upon his designation of the instrument as a will, but upon his intention to create a revocable disposition of his property to take effect after his death. It is essential, however, that the maker shall have intended to express his testamentary wishes in the particular instrument offered for probate. Caywood v. Caywood, Tex.Civ.App., 216 s.W.2d 821, wr. ref.; 68 C.J. 604, Sec. 225; 57 Am.Jur. 45, Sec. 8 et seq.

The instrument offered for probate in the Caywood case was a letter written by a Navy pilot to his mother which contained the statement "You see my Will is made out to you and sister so this will be easy for you to get if I was to have a little hard luck." (216 S.W.2d 823) The judgment of the District Court admitting the letter to probate was reversed and rendered by the Court of Civil Appeals, which said:

'So, in the instant case, if the deceased meant only to say that he had executed a will and to state to whom he had disposed of his property in such will, then the language used would not constitute a will. * * *'

The court concluded that the writer intended that his mother and sister would receive his property not by the provisions of the letter but by the terms of the will that hs said he had previously executed.

In Langehennig v. Hohmann, 139 Tex. 452, 163 S.W.2d 402, 403, the decedent left a will giving all property to his wife in fee simple. The husband and wife had also executed in the presence of witnesses a formal instrument which recited that the parties had theretofore made their wills 'and which are and shall be and remain in full force and effect as heretofore executed.' There were then a number of provisions expressing the 'wish and desire' of the parties as to how the survivor should manage and dispose of the estate. It was held that the writing was an expression of the wishes, but not of the will, of the husband and wife and should not be admitted to probate. In support of this conclusion it was said:

'That this is the true meaning of the instrument is evidenced also by the declaration in mandatory language that the wills already made shall remain in full force and effect as executed. The will of William Hohmann could not remain in full force and effect if the later writing had been intended as a codicil, for the codicil would modify the will or revoke it in part by bequeathing to the children, either by direct bequest or by the creation of a trust in their favor, a part of his property, all of which had been willed to his wife. Thus the writing, if construed as testamentary, would be contradictory in its own provisions. When it is construed as an instrument of recommendation or advice it is not contradictory of itself and all of its provisions are given effect.'

We agree with respondent that the decedent intended to make a testamentary disposition of his property. It is our opinion, however, that the holographic instrument of August 24th was not intended as a declaration of the manner in which he would have his property pass and vest at his death. He had previously signed an instrument which he expressly declared to be his last will and testament and which the parties agree is the 'will' referred to in the informal memorandum. The latter instrument begins with the words 'Supplementary to my last will and testament, it still stands as is.' This clearly negatives any intention to revoke or modify any of the provisions of the typewritten instrument. At the very outset, the decedent conveys the idea that he has something in mind other than the making of a testamentary disposition of his property. He has already executed an instrument which he thinks is a legal will, and 'it still stands as is.' He then tells his wife 'my will is in brief case zipper comp.', which obviously was not intended to refer to the instrument which he was then writing. Later he advises her to have the will probated at once and suggests that she go to Judge Ewing Boyd for legal advice.

It should also be observed that the decedent had some knowledge of the form and wording of a will. The introduction to the typewritten instrument expressly declares the same to be his last will and testament. In the body of this 'will' he used the words 'give, devise and bequeath' and 'it is my will,' directed the payment of debts, appointed executors and revoked former wills. The holographic instrument does not affirmatively state that it is intended or declared to be a will and does not contain language ordinarily used to make a disposition of property. While this circumstance is not controlling, it tends to support our conclusion as to the decedent's purpose in executing the informal memorandum.

The statement 'Everything is yours Darling' in an instrument properly executed and intended as a will might be effectual to pass the decedent's property. See Barnes v. Horne, Tex.Civ.App., 233 S.W. 859, no writ; Page v. Barnes, Tex.Civ.App., 258 S.W. 264, writ dis.; Warnken v. Warnken, Tex.Civ.App., 104 S.W.2d 935, writ dis. agr.; Ripley v. Dearing, Tex.Civ.App., 153 S.W.2d 243, writ ref. w. m. We are not permitted, however, to lift such statement out of context, but must consider the same...