Huckaby v. Huckaby

• Decision Date: 12 September 1968
• Docket Number: No. 15291,15291
• Citation: 436 S.W.2d 601
• Parties: Arthur L. HUCKABY et al., Appellants, v. Leon Mitchell HUCKABY, Appellee. . Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 601

436 S.W.2d 601

Arthur L. HUCKABY et al., Appellants, v. Leon Mitchell HUCKABY, Appellee.

No. 15291.

Court of Civil Appeals of Texas Houston (1st Dist.).

Sept. 12, 1968.

On Rehearing Nov. 21, 1968.

Second Rehearing Denied Jan. 30, 1969.

J. Edwin Smith, Houston, for appellants.

Paul & Aston, Kenneth A. Paul, Houston, Jack Voyles, Port Arthur, for appellee.

BELL, Chief Justice.

This is an appeal from the judgment of the District Court denying, on appeal to that court from the Probate Court, the probate of alleged will of Leon F. Huckaby dated October 18, 1953. A jury had found in answer to Special Issue No. 6 that the will had been revoked. Appellants are the surviving brother and mother of the testator who were the proponents of the will. Appellee is the son of the testator and his only heir. He contested probate on the ground it was not the last will of his father and also contended the instrument had been altered, and that, if it was entitled to be admitted to probate, it should be admitted in the form as originally drawn. The will offered for probate consisted of two typewritten pages. The testator's signature and those of the witnesses appeared on the second page of the will.

The testator was a school teacher in the Houston School District and also had an interest in the Huckaby Funeral Home. The will was witnessed by two fellow school teachers, James Charles Jones and Clytie F. Massey. Its execution was duly proven by the two witnesses and they each testified it had not been revoked so far as they knew. The will as typed showed the month of November as the date it was executed, but a line is drawn through 'November' and the term 'Oct.' is written in ink. Mrs. Massey testified she called attention to the incorrect month and had it changed. Neither of the attesting witnesses read the will. The testator brought the will to the teachers' lounge on a school day. The execution of the will was duly proven. The contestant did introduce a calendar which showed October 18, 1953 to be a Sunday.

This will left specified property to the proponents, except money in any bank, which was left to the contestant. It appointed Arthur L. Huckaby as Independent Executor without bond.

By paragraph I specific property is given to Mrs. Katie L. Huckaby. As a part of the last line of paragraph I is the following language and immediately below is paragraph II all in the following form:

'I also bequeath all personal and real property at my death

II.

'To my beloved brother, Arthur L. Huckaby. All interest I have in the (sic) business known as Huckaby Funeral Service, equipment, Funeral Coaches, and, the interest I hold in the Fireside Burial Association.'

The jury, on sufficient evidence, found that the words 'I also bequeath all personal and real property' were not contained in the will when it was signed by the testator on October 18, 1953.

Paragraph VII provided: 'My personal car shall be given to my beloved brother, Arthur L. Huckaby.'

It is obvious to the naked eye that there had been an erasure where the words 'brother, Arthur L.' appear.

The jury, on sufficient evidence, found that the words 'son, Leon Mitchell' had not been erased prior to the execution of the will and replaced by the words 'brother, Arthur L.'

Based on the jury's answer to Special Issue No. 6 that the testator revoked the will offered for probate, the court denied probate.

Appellants urge there was no evidence and, alternatively, insufficient evidence to support the jury's finding that the will had been revoked.

The alleged revoking will was not produced. The evidence shows the instrument was typewritten; that the signature of testator appeared at the bottom of page 1 of the alleged revoking will and also at the top of page 2. Also the signatures of two unnamed and unknown witnesses appeared on the second page.

Leon Mitchell Huckaby was the son of the testator and Mrs. Eula Mae Harrison. They were divorced in 1940 when Leon was about a year old. The testator never remarried. Mrs. Huckaby married Albertus Harrison in 1961. Custody of the contestant was placed with the mother. The father supported the contestant, paying his way through the public school system at Port Arthur where the boy and his mother lived. Further, the father financed his son's education at Howard University for about two years. The contestant decided to discontinue his college work and joined the United States Navy. He was in the Navy at the time of his father's death. The evidence discloses a friendly relationship during all of the intervening years between the father and son and the boy's mother. There were frequent visits between them. The only difference between the father and son reflected by the record is that the father wanted his son to attend college at Prairie View, the father's alma mater, while the son wished to attend Howard University. Too, the father was disappointed that his son did not want to become a teacher and did not complete his college work.

Arthur L. Huckaby testified the testator died July 31, 1964. He had been told the will offered for probate was in the safe deposit box at the First City National Bank in Houston. The witness and his son got the will from this box. His son lived in New York but was here for the funeral. The box was in the name of the funeral home. When he got the will he turned it over to Mrs. Thomas, his sister. The will was then taken to the Probate Clerk's office by an attorney who represented him at the time. He was able to find no other will. He got the will after the funeral.

The contestant testified to the good relations that always existed between him and his father. He also testified there was a close relationship with his Uncle Arthur until after his father's death. He came home on leave from the Navy for the funeral. The funeral in Houston was August 3. The next day interment took place at Ennis, Texas. On the day following, when the family had returned to Houston, the witness went to visit a cousin of his and his Uncle Arthur was there. The uncle was jumping and waving and using profane language toward the witness. His uncle told the son that the son was contesting the will. The son, at that time, knew nothing of the will. The uncle kept telling him that he was trying to get a lawyer. This the son denied. After some talking someone telephoned and asked for the son. The telephone was answered by the uncle's son and he pointed to the contestant indicating the call was for contestant. The uncle shook his head and the young man answering the telephone said contestant was not there. After hanging up the telephone, he said it was attorney Goldsmith trying to contact contestant. Contestant denied knowing Mr. Goldsmith. Following the latter incident the uncle 'got a little better'. About thirty minutes later Mr. Goldsmith came to the house and introduced himself to contestant. Contestant told Mr. Goldsmith he didn't need legal counsel. Later the uncle told contestant if he fought the will contestant would get only $1.00. At this time the uncle had three documents in his hand that he was waving. He was also shouting at contestant. A little later the uncle became composed and told contestant if he would 'go along' the uncle would send him to college; help him get his doctor's degree and help him get set up in the insurance business. When contestant asked if he could read the will, the uncle said his (the uncle's) lawyer would read it to him. The uncle then said contestant could read it the next day. It was quite a number of days before he got to read the will. Contestant's father had never told him about any will. The first he ever heard about a will was from his uncle.

The uncle nowhere denied the above testimony given by contestant.

A representative of the First City National Bank testified from the business records on the safe deposit box. It was rented in the name of L. F. Huckaby. There was a co-tenant, A. L. Huckaby, whose signature was authorized. Both parties signed the rental contract. The record did not reflect the death of testator until 1965. The records show entry into the box on August 5, 1964.

Mrs. Harrison testified she and testator at one time planned to remarry but did not do so. He talked to her a number of times about remarriage. In 1957, just after contestant had gone off to college, testator came to see her at Port Arthur. He suggested they remarry. At this time testator showed her an instrument he referred to as a will and stated he was leaving everything to Leon (contestant), but if the witness would remarry him he could leave it to her. He insisted she read the instrument and she did so. The instrument offered for probate was not the one he showed her. In the instrument shown her there were no erasures and the only names on the first page were those of Leon F. Huckaby and Leon Mitchell. At the bottom of the first page was only the signature 'Leon F. Huckaby.' There were two pages and on the second page she saw the name Leon F. Huckaby and below it two other names. She did not know these two persons and could not remember their names. It was dated in 1957 and testator told her he had just had 'the will' drawn up.

A Mr. Buckner of Port Arthur testified. In the late Fifties testator came to see him about talking to testator's former wife about remarrying him. After talking awhile testator pulled out a document and said it was his will and he had willed his estate to his son. Testator handed him the instrument and the witness casually looked at it, but did not read it throughout. It had a blue cover. The instrument offered for probate was not the instrument testator showed him. On the instrument shown him testator's name was signed at the bottom of the page. The instrument consisted of two pages. On the second page he saw testator's name and a couple of other names. He did not know the names other than testator's. He did not know the terms of the instrument because he did not read it....