Howard v. Combs

• Citation: 113 S.W.2d 221
• Decision Date: 14 January 1938
• Docket Number: No. 13650.,13650.
• Parties: HOWARD et al. v. COMBS.
• Court: Texas Court of Appeals

113 S.W.2d 221

HOWARD et al. v. COMBS.

No. 13650.

Court of Civil Appeals of Texas. Fort Worth.

January 14, 1938.

Rehearing Denied February 11, 1938.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Parker County; J. E. Carter, Judge.

Proceeding by Janet Reynolds Howard and others to probate a will of Mrs. Luvenia Reynolds, deceased, wherein A. B. Combs contested the probate of the will. From a judgment denying the probate of the will, proponents appeal.

Reversed and remanded.

Grindstaff, Zellers & Hutcheson and R. B. Hood, all of Weatherford, for appellants.

Preston Martin, of Weatherford, and Goree & Rice and Wm. S. Harris, all of Fort Worth, for appellee.

SPEER, Justice.

This is an appeal from the district court of Parker county denying the probate of a will.

Nolan Queen, an attorney of Weatherford, filed a short form application in the county court for the probate of the last will of Mrs. Luvenia Reynolds, deceased; the application contained all statutory requisites, including the allegation that the applicant was named in the will as independent executor. The will was tendered with the application.

A. B. Combs, a brother of testatrix, filed an objection to the probate of the will, alleging as reasons: (a) Because the propounded will was not the original, as executed by testatrix, but was a carbon copy thereof; (b) because testatrix died intestate, she having destroyed and revoked the original will, of which the propounded instrument was a copy, prior to her death. Further allegations were made in said objections, to the effect that testatrix was the surviving wife of W. H. Reynolds, deceased; that W. H. and Luvenia Reynolds had acquired a community estate during the lives of both; that they had no children; that W. H. Reynolds died intestate prior to the death of his wife; and that the latter took the common property in fee simple under the law of descent and distribution. That contestant, being a brother of testatrix, was interested in the estate and entitled to contest the probate of the will.

The will was duly admitted to probate by the county court and contestant appealed to the district court.

Before trial was had in the latter court, certain heirs of W. H. Reynolds intervened as proponents, with Nolan Queen. With permission of the district court, Mr. Queen withdrew from the case as proponent, and by order of the court, interveners, Mrs. Virginia Howell, a widow, Oscar Reynolds and Janet Reynolds Howard, joined pro forma by her husband, were made proponents of the will.

A replication to contestant's pleadings was made, in which it was alleged: (1) The adoption by them of the original application by Mr. Queen, to probate the will. (2) That W. H. and Luvenia Reynolds had lived together as husband and wife for more than fifty years and had no children born to them, and that all property on hand at their respective deaths belonged to the community. (3) That prior to the death of W. H. Reynolds, he and his wife had, for a valuable consideration, entered into an oral agreement and contract to the effect that neither would make a will during the lifetime of both, so that the survivor would receive the full benefit of the entire estate during his or her lifetime, but that the survivor would make a will leaving one-half of the property then on hand to the heirs of the husband and wife respectively; that both parties fully performed the contract and agreement, by making no will during the lifetime of both; that Luvenia Reynolds the surviving wife, accepted the terms of the contract and received the whole of the estate at the death of her husband. (4) That after the death of her husband, she recognized the agreement and executed the will now propounded, which is in keeping with the terms of the agreement with her husband. (5) That said will was executed by testatrix in duplicate originals and both left with her attorney, Mr. Queen, with instructions to see that her will was carried out, regardless of what happened. (6) That if testatrix ever destroyed one of said original duplicate wills, it was not with the intention on her part to revoke the other, left with her attorney. (7) That under the terms of the performed agreement between her and her deceased husband, testatrix was estopped from revoking the will made, and the contestant is estopped from asserting its repudiation by her. (8) That the duplicate original will left by testatrix with Mr. Queen, her attorney, was never revoked, nor were the instructions given him in regard to it withdrawn.

A trial of the issues was had to a jury in district court. Proponents proved by Mr. Queen that he had been the legal advisor to Mr. and Mrs. Reynolds for about fourteen years; that he had discussed their property rights with them both; he had also discussed with them the matter of wills. Proponents offered to prove by Mr. Queen that W. H. Reynolds had told him that he and his wife (testatrix) had agreed that neither of them would make a will during the lifetime of both, but that the survivor should take the whole estate during his or her lifetime and that such survivor should make a will, which at his or her death would divide the property equally between his and her heirs. Proponents also attempted to prove by the witness that testatrix told him of the agreement and that she wanted her will drawn in a way that would carry it out. Upon objections by contestant that such statements were hearsay and immaterial, the testimony was excluded from the jury. The rulings of the court are before us on bills of exception and assignments of error.

Proponents proved the execution of the will propounded, along with the fact it was executed in duplicate originals, simultaneously one with the other, before the same attesting witnesses, viz., Miss Burns and Mrs. Mooty; further proof was made that both instruments were left with the attorney, for safekeeping; that testatrix told the attorney she did not want anybody to know she had made a will and charged him to tell no one; that testatrix said she did not want to take it to her home nor place it in the bank for fear her brother would find it out; that she did not want to be worried and tormented about it. That the will was executed on November 15, 1934, and that in January or February following, Miss Burns, who worked for testatrix, called at the lawyer's office and said Mrs. Reynolds wanted her copy of the will. Each of the instruments had been placed in separate envelopes and labeled alike; that the attorney, not knowing which was the one made by the typewriter ribbon and which by the carbon paper, gave Miss Burns one of them; that testatrix told Mrs. Mooty, a few days later, she had destroyed the will. That Mrs. Reynolds died and Mr. Queen made application to probate the will and did not open the envelope containing it until he went to the county clerk's office to file it.

When the will was offered in evidence, contestant objected upon the grounds, that the instrument purported to be a copy of an original one and the latter had not been properly accounted for, and further that the proof already offered by proponents showed the will had been revoked by its destruction by testatrix. The objection was sustained by the court, to which exception was taken by proponents. The testimony was closed immediately after this ruling was made, and upon request by contestant, an instructed verdict was rendered by the jury and judgment entered denying probate of the will. New trial was denied and notice of appeal given by proponents. Appeal was perfected and the several rulings of the court in excluding testimony and instructing a verdict are present for review.

There is no conflict in the testimony worthy of note. In fact, contestant offered none other than to cross examine proponents' witnesses.

We have concluded that this case should be reversed and remanded for another trial, and therefore shall refrain, as far as possible, from commenting upon the testimony and its weight, yet we feel that a definite expression of our views on some phases of the case should be stated.

The trial court instructed a verdict for contestant, and in considering the assignment challenging that act, the weight or preponderance of the testimony is not the test, but we should discover whether or not there was any testimony of probative force, to the contrary. In considering the peremptory instruction, we must of necessity bear in mind that the reason the will was not in evidence was because it was excluded by the court, upon the objection that it was a carbon copy, and the original had not been accounted for, and further because it was shown to have been revoked.

We do not believe that there is any real difference in the legal effect of the will offered in evidence, because it showed to have been written with carbon paper, and what it would have been if...