In re Estate of Jones
| Decision Date | 27 July 2006 |
| Docket Number | No. 09-05-505 CV.,09-05-505 CV. |
| Citation | 197 S.W.3d 894 |
| Parties | In the ESTATE OF Ruby P. JONES. |
| Court | Texas Court of Appeals |
Jeffrey W. Glass, Jeffrey W. Glass, P.C., Houston, for appellants.
Bruce M. Partain, Nancy Y. Hart, Wells, Peyton, Greenberg & Hunt, LLP, Beaumont, for appellee.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
Betty Spain appeals a court order admitting her mother's 1983 will to probate.1 The issue we consider is whether, under the circumstances here, an accurate photocopy of a valid unrevoked "lost" will may be admitted to probate without the testimony of a credible witness who read the "lost" will or heard it read. See Tex. Prob.Code Ann. § 85 (Vernon 2003). We affirm the order of the probate court.
Spain's mother, Ruby Jones, died on September 8, 2001. Ruby Jones was survived by her husband, Luther Jones, Sr., and three adult children from a previous marriage. Luther Jones, Sr. filed an Application for Probate of Will and Issuance of Letters Testamentary. An anonymous caller informed the clerk's office that the will submitted with the application was not an original, but a copy. The probate court granted Luther, Sr.'s "oral trial amendment" to seek the probate of a will "that is not being produced in Court." See Tex. Prob.Code Ann. § 85.
The court admitted the copy of the will to probate and authorized the issuance of letters testamentary. Spain filed a Motion to Contest Admission of Will Not Produced in Court and Issuance of Letters Testamentary and For Determination of the Heirs of the Decedent. Luther, Sr. died on January 5, 2003. Spain filed a motion for partial summary judgment claiming, among other things, the heirs were not properly served with citation before the will was admitted to probate. See Tex. Prob.Code Ann. § 128 (Vernon 2003). The trial court granted Spain's motion, withdrew the will from probate, and revoked the letters testamentary.
Luther Jones, Jr., the independent executor of his father's estate, sought to admit the copy of Ruby's will to probate. He filed a First Amended Application for Probate of Will. After considering the evidence and testimony at trial, the probate court granted his application. Spain filed this appeal.
The only issue appellant presents on appeal is whether the contents of Ruby's will were sufficiently proven by the testimony of a credible witness who had read it or heard it read. See Tex. Prob.Code Ann. § 85. The issue assumes section 85 applies to this case. We conclude section 85 does not apply.
Section 88 of the Texas Probate Code sets forth proof requirements for probate of a will. See Tex. Prob.Code Ann. § 88 (Vernon 2003). Section 88(a) requires an applicant to prove the application was made within four years of the decedent's death, the court has jurisdiction and venue over the estate, and citation has been served and returned in accordance with the Probate Code. Id. § 88(a). Section 88(b) requires proof the will was valid and not revoked by the testator. Id. § 88(b). Section 84 sets requirements for proving a written will produced in court. See Tex. Prob.Code Ann. § 84(Vernon Supp.2005).2 Under section 84(b), the applicant may prove an attested written will through the sworn testimony of one or more of the subscribing witnesses. Id. § 84(b).
Appellant asserts under section 85 additional proof is required in this case. See Tex. Prob.Code Ann. § 85. Section 85 provides the following requirements for a written will which cannot be produced in court:
A written will which cannot be produced in court shall be proved in the same manner as provided in the preceding Section for an attested written will or an holographic will, as the case may be, and the same amount and character of testimony shall be required to prove such will as is required to prove a written will produced in court; but, in addition thereto, the cause of its non-production must be proved, and such cause must be sufficient to satisfy the court that it cannot by any reasonable diligence be produced, and the contents of such will must be substantially proved by the testimony of a credible witness who has read it or heard it read.
Id. In other words, a proponent of a written will which cannot be produced in court must prove (1) the requirements for a valid written will to be admitted to probate, (2) the cause of the written will's non-production and that the will cannot be produced through reasonable diligence, and (3) the contents of the will "substantially" by a credible witness who has read the will or heard it read. See generally In re Capps, 154 S.W.3d 242, 244 (Tex.App.-Texarkana 2005, no pet.) (citing Coulson v. Sheppard, 700 S.W.2d 336, 337(Tex.App.-Corpus Christi 1985, no writ)).
The copy of Ruby's will admitted into evidence is dated March 4, 1983.3 According to the copy, Ruby bequeathed all her "personal items" to her children equally and all of her other assets to her husband, Luther, Sr. The copy provided that in the event her husband predeceased her, the three children would receive all assets in equal shares. She made a specific bequest of her interest in two acres of land in Jasper County, Texas, to her husband and if he predeceased her, to her children and stepchildren in equal shares.
A copy of Luther, Sr.'s will, also executed on March 4, 1983, was admitted into evidence. His will was identified at trial as a "reciprocal" will, and was in the same format as the copy of Ruby's will admitted into evidence. The same witnesses and notary public signed both wills. Luther, Sr.'s will made specific bequests of certain personal property to various individuals. He left the two acres in Jasper County to Ruby unless she predeceased him, and then to his children and stepchildren equally. He gave Ruby a life estate in their house, and at the expiration of the life estate, the house went to his children. The remainder was left to Ruby, unless she predeceased him, and then to his children equally.
Leesa McMullen, a former legal assistant for the attorney who drafted Ruby's and Luther, Sr.'s wills, identified the copy of her signature on both wills and testified she signed the wills as a witness. She further testified that "normal procedure" would have been followed in executing the wills. McMullen explained the procedure as follows: the notary public would have sworn in McMullen and Harriet Leger, the other witness, before they served as witnesses, and the testator or testatrix would have declared to the notary and the witnesses in the notary's presence that the instrument was his or her last will and testament. Although McMullen testified she does not remember seeing Ruby execute her will, she assumes Ruby signed the will in her presence as part of normal procedure, and as evidenced by the recitations in the will.
The trial court admitted the deposition of Susan Martin into evidence. Martin the notary public who signed the wills, was the legal secretary for the attorney who drafted the wills. Although she did not remember Ruby Jones or her will, Martin identified her signature on the copy of Ruby's will and testified the witnesses signed in her and Ruby's presence. Martin further testified that the formalities of a self-proved will were observed. See Tex. Prob.Code Ann. § 59(Vernon 2003). She said the statements contained in the self-proving affidavit of Ruby's will were true and correct. Based on her familiarity with the format the drafting attorney typically used, Martin testified she recognized the copy of the will as a true and correct copy.
Luther, Jr. testified Spain, Ruby's daughter from a previous marriage, spent the night in the guest room of Ruby's and Luther, Sr.'s house the night Ruby passed away. According to Luther, Jr., Ruby kept her important documents in her clothes and in the guest room where Spain spent the night. The day after Ruby's death, Spain and her sisters came to the house. Luther, Jr. testified Spain told him she was taking Ruby's personal belongings because Spain "had a will" or "a copy of the will," and under the will, she and her siblings were entitled to Ruby's belongings. While observing Spain and Spain's family members removing Ruby's personal items from the house, Luther, Jr. informed Spain he could not find the will and asked for a copy. She agreed to bring a copy of the will upon her return to the house the next week.
Luther, Jr. testified he was aware that his father and stepmother executed wills together around 1983. He testified he had seen a copy of Ruby's will under which Ruby's children were to receive certain personal property. Luther, Jr. was unaware of any revocation or modification of Ruby's 1983 will. Luther, Jr. and his father searched the house for Ruby's will and located what they thought was the original. Later they realized it was a copy.
Spain testified the signature on the copy of the will was her mother's signature. Ruby told Spain "[t]wenty something years" before Ruby died that Ruby and Luther, Sr. had executed wills. Spain testified Ruby never told her she canceled or revoked the will. Spain claimed she had never seen the copy admitted at trial and denied telling anyone that she knew the will's contents. She testified she left the hospital after her mother died, spent that night at her mother's house, and slept in the guest room. She testified she told Luther, Jr. she thought she might have a "copy of the will," or "a will," and that she would bring it. Spain arrived at her mother's house about a week after the funeral with three trucks and two trailers to take Ruby's personal items. She informed Luther, Jr. she did not find Ruby's will. Although she admitted she brought the trucks because she thought she was going to receive a substantial amount of property, she denied knowing the terms of the will.
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