May v. Brown

• Decision Date: 29 November 1944
• Docket Number: No. 11448.,11448.
• Parties: MAY et al. v. BROWN.
• Court: Texas Court of Appeals

184 S.W.2d 538

MAY et al. v. BROWN.

No. 11448.

Court of Civil Appeals of Texas. San Antonio.

November 29, 1944.

Rehearing Denied January 3, 1945.

Appeal from District Court, 103d District, Cameron County; Jas. S. Graham, Judge.

Proceeding by Jean W. Brown opposed by Cathryn May and another to admit to probate the will of John C. Fanning, deceased. From a judgment for proponent, contestants appeal.

Affirmed.

Strickland, Ewers & Wilkins and Magus F. Smith, all of Mission, for appellants.

Taylor, Wagner & Taylor, of Brownsville, and Carter & Stiernberg, of Harlingen, for appellee.

MURRAY, Justice.

This is an appeal by Cathryn May and Medwin Hall, joined pro forma by their respective husbands, from a judgment of the District Court of Cameron County admitting to probate a will of their father John C. Fanning deceased, dated March 30, 1943.

The trial in the district court began to a jury, but at the close of the testimony the trial judge overruled a motion for peremptory instruction by contestants and granted a motion for a peremptory instruction by the proponent of the will, Mrs. Jean W. Brown, and then, in accordance with such instructed verdict, entered judgment admitting the will of John C. Fanning, dated March 30, 1943, to probate.

We shall first consider appellants' contention that the court erred in granting appellee's motion for an instructed verdict.

The facts are as follows: Prior to 1928 and up to the time of his death on December 26, 1943, John C. Fanning was the owner and operator of the Capitol Theater, a moving picture business in the City of Brownsville, Texas. In 1928 he began to keep company with one Mrs. Jean W. Brown, and in 1933 his family, consisting of a wife, two daughters and one son, left him and moved to Fort Worth, Texas. His wife, Mrs. Bertha F. Fanning, never again returned to Brownsville to live. There is evidence that some eight years before his death John C. Fanning went to Fort Worth and visited his family and he and his wife lived together for a short period as man and wife. Shortly before his death his son, M. D. Fanning, visited him in Brownsville and Fanning was more than delighted to see his son. John C. Fanning was a drinking man and sometimes drank as much as a quart of whisky per day. After Fanning's family left Brownsville, Mrs. Jean W. Brown moved into Fanning's apartment and became his housekeeper and practical nurse. Fanning was not well at times and was compelled to eat specially prepared food. Mrs. Brown prepared this food for him. She nursed him when he was sick and cared for him in many ways. Fanning was very appreciative of what Mrs. Brown did for him and promised to provide for her in his will. He referred to her as his guardian angel.

On or about March 30, 1943, Fanning went to a lawyer's office in San Antonio and had a will written, in which he left half of his estate to Mrs. Brown and half to his wife, Bertha F. Fanning. This bequest to Mrs. Fanning was stated to be in lieu of her community interest.

Shortly before his death Mr. Fanning began to think more about his family and especially so after his son visited him. He executed a new will, wholly in his own handwriting and asked two young ladies who worked for him to sign as witnesses. This will could not be found after his death and must be presumed to have been destroyed by him with the intention of revocation. There is no evidence as to the provisions of this will. It is not even shown whether or not it contained a revoking clause. Fanning told his son that he had made a prejudicial will, but that he had changed that, he had made a new will in which he had made his son executor. Fanning made statements indicating that he wanted his family to have the enjoyment of his property. He told his son he wanted him to occupy his chair in his office, evidently meaning that he wanted his son to take over the management of the theater.

Mrs. Brown told someone that Mr. Fanning was changing everything over, and she did not see why, because his family had never done anything for him. About this time he made his wife beneficiary in his insurance policy and sent $250 to each of his children and $2,500 to his wife. This was also about the time he executed the new will. Shortly before executing the new will he asked two lawyers, with whom he associated at the Elk's Club, if a will written wholly in his own handwriting would be a valid will and was informed that it would be.

Fanning was taken sick in the Elk's Club and carried to his apartment, where he died on December 26, 1943. Mrs. Brown and others were present when he died. She had those present take everything out of his pockets, including his keys, and give them to her. She sent her son down to the office, according to some of the witnesses, to see if he could find a will, and according to others, to see if he could find Mrs. Bertha F. Fanning's address. The son came back with a telegram and said that was all he could find. Another witness testified he saw the son coming out of Mr. Fanning's office with a tin box under his arm. This tin box was later found in the apartment. There is some probability that the second will might have been in this tin box.

At the outset, it must be borne in mind that this is an application to probate the will of John C. Fanning, which is governed by the provisions of Art. 3348, Vernon's Civ.Stats., reading as follows:

"Art. 3348. Facts which must be proved "Before admitting a will to probate, it must be proved to the satisfaction of the court:

"1. That the testator, at the time of executing the will, was at least twenty-one years of age, or was married, that he was of sound mind, and that he is dead.

"2. That the court has jurisdiction of his estate.

"3. That citation has been served and returned in the manner and for the length of time required by law.

"4. That the testator executed the will with the formalities and solemnities and under the circumstances required by law to make it a valid will.

"5. That such will has not been revoked by the testator."

It is not a suit to set aside the probate of a will already admitted to probate. If it were of the latter nature we would have no difficulty in saying that the evidence was insufficient to support a finding that the will of March 30, 1943, had been revoked by John C. Fanning, the burden of proof being upon the parties attacking the probated will to establish such fact by a preponderance of the evidence. Article 5534, Vernon's Ann.Civ.Stats.; Chambers v. Winn, Tex.Civ.App., 133 S.W.2d 279; 44 Tex. Jur. p. 573, Sec. 33.

The case at bar presents a very much more difficult question. Subdivision 5 of Article 3348 places the burden of proof upon a party offering a will for probate to show by a preponderance of the evidence that such will has not been revoked by the testator. Therefore, unless the evidence in this case conclusively shows that the will of March 30, 1943, had not been revoked by John C. Fanning, then and in that event at least a question of fact was raised which should have been submitted to the jury. Carlson v. Carlson, Tex.Civ.App., 272 S. W. 823.

This brings us to an examination of the evidence before us. Proponents produced the will of March 30, 1943, in court, its execution was established, it was not mutilated or destroyed. There is no suspicion cast about the original execution of this will. Appellants contend that they have cast such suspicion upon the execution of this will, but we cannot agree. We take it that the evidence is overwhelming that on March 30, 1943, John C. Fanning duly executed the will offered for probate, with all the formalities and solemnities required by Art. 8283, Vernon's Ann.Civ.Stats. It therefore follows that the will...