McElroy v. Phink

• Decision Date: 21 March 1903
• Citation: 74 S.W. 61
• Parties: McELROY et al. v. PHINK.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

74 S.W. 61

McELROY et al. v. PHINK.^*

Court of Civil Appeals of Texas.

March 21, 1903.

Appeal from District Court, Grayson County; Rice Maxey, Judge.

Application by Silas Phink to probate a lost will alleged to have been executed by Maria F. McElroy, deceased, which application was resisted by A. McElroy and others. From a judgment admitting the will to probate, and appointing the applicant administrator with the will annexed, the parties resisting the application appeal. Affirmed.

Smith, Templeton & Tolbert, for appellants. Wolfe, Hare & Semple, for appellee.

BOOKHOUT, J.

The following statement of the case is contained in brief for appellants, and, as it is substantially correct, the same is adopted: This action was instituted in the county probate court of Grayson county by an application made to said court by Silas Phink to probate a lost will, alleged to have been executed by Maria F. McElroy, deceased. This application was resisted by appellants, who denied that Mrs. McElroy, at her death, left any such will as was sought to be probated; and they charged that, if any such will was ever made by said decedent, she canceled and revoked the same prior to her death. Upon the hearing of the application the probate court admitted the alleged will to probate, and established the same as the last will and testament of said decedent, and appellee was by said court appointed administrator of said decedent's estate, with the will as established by said court annexed. From this order probating said will, and appointing appellee as said administrator, appellants duly appealed to the district court of said county. During the pendency of the probate proceedings in the county court, Sam McElroy, the surviving husband of Maria F. McElroy, died, and his heirs joined with the other contestants in resisting the probate of said alleged will. After the case was appealed to the district court, A. McElroy, who, as an heir of Sam McElroy, was one of the contestants in the county court, died; and his wife and daughter, who were his only heirs, became parties to the proceedings, and joined the other contestants in resisting the probate of said alleged will. The case was tried in the district court before the judge thereof, who rendered a judgment confirming the judgment of the county court, and making same the judgment of the district court. From this judgment, appellants have duly appealed.

1. It is contended by appellants that the evidence is wholly insufficient to overcome the presumption that the alleged will was revoked by the decedent in her lifetime, and to show that the decedent upon her death left any will. The will sought to be probated was not produced. The proponent was required to show its execution, and that he could not produce it, and that it had not been revoked. This he contends he has done, and that the trial court so found, and that the evidence supports the finding. The evidence of the witness Hannah was, in substance, that in the winter of 1897 or 1898 he was called upon by Mrs. Maria F. McElroy to witness an instrument signed by Mrs. Maria F. McElroy, which she stated was her last will, and which he and J. P. Wheat, at her request, signed as witnesses in her presence and in the presence of each other. This will was delivered to said witness for safekeeping. Thereafter, in July or August, 1900, the witness made a search for the said will; being induced to do so by the failing health of Mrs. McElroy, and thinking it might be called for on account of her death. He failed to find the will. He went immediately to Mrs. McElroy and told her of its loss, whereupon she requested the witness to have another will prepared, just like the lost will. At her request, witness had another will prepared, and, in the evening of the day after notifying her of the lost will, he took the will so prepared to her house, and read it over to her. He left it with her, telling her that she and Uncle Sam (meaning her husband) could look over it, and witness would go and get Mr. Wheat to come over with him for the purpose of witnessing it. Witness got Mr. Wheat and took him to the house, and Mrs. McElroy signed the will in the presence of the witness and Mr. Wheat, and each of them signed the same as witnesses in her presence and in the presence of each other, at her request. Mrs. McElroy then delivered the will to witness Hannah for safe-keeping. Mr. Wheat testified, in substance, the same as the witness Hannah as to the execution of the will in July or August, 1900, and his witnessing the same. He says he read the will, and both he and Hannah testify as to its contents. It was shown that Mrs. McElroy was about 60 years old at the time of executing the will, and of sound mind. Sam McElroy, the husband of Mrs. Maria F. McElroy, died in Randell county, Tex., November 3, 1901. About one month prior to his death he was married to Mrs. Jennie McElroy, who testified that Sam McElroy died intestate, and that while she knew him he never had any papers connected with his first wife or her estate. Sam McElroy and Mrs. Maria F. McElroy had no children. Sam McElroy was living at the time this application was filed in the county court, and notice was served on him to produce the will upon the hearing of said application. Mrs. McElroy died in October, 1901, at Ft. Worth, where she had gone five or six weeks previous to undergo an operation. The will was kept by witness Hannah until a day or two before Mrs. McElroy and her husband left Sherman for Ft. Worth to have the operation performed, when Sam McElroy went to the house of witness Hannah and stated to him, "I came after that will." Hannah delivered the will to him at the time, and has never seen it since. The general doctrine is that a presumption of revocation arises when a will which has been traced to the possession of the testator cannot be found after his death. Woerner's Am. Law of Administration, vol. 1, p. 91. This presumption would not necessarily arise where the will is traced to the possession of some person other than the testator. In this case the undisputed evidence shows that the will, when executed, was delivered to Mr. Hannah for safe-keeping. The husband, Sam McElroy, came to Mr. Hannah and procured the will, saying, as Mr. Hannah says, either, "I want it," or, "My wife wants it." The record shows that the testatrix and her husband had no children, that the property bequeathed to appellee was her separate estate, and that, but for such will, Sam McElroy would have inherited the fee to a portion of said property. The evidence does not show that the will...