McElroy v. Phink

• Decision Date: 23 November 1903
• Citation: 76 S.W. 753
• Parties: McELROY et al. v. PHINK.
• Court: Texas Supreme Court

Page 753

76 S.W. 753

McELROY et al. v. PHINK.

Supreme Court of Texas.

November 23, 1903.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Application by Silas Phink for the probate of the will of Mariah F. McElroy, deceased. From a judgment of the Court of Civil Appeals (74 S. W. 61) affirming a judgment in favor of proponent, contestants A. McElroy and others bring error. Reversed.

Smith, Templeton & Tolbert, for plaintiffs in error. Wolfe, Hare & Semple, for defendant in error.

GAINES, C. J.

This proceeding was instituted in the probate court of Grayson county by defendant in error to probate a will of Mariah F. McElroy, deceased, which was alleged to have been lost. The probate was contested by the plaintiffs in error as heirs at law of the deceased. That court admitted the will to probate. The case was appealed to the district court, where, upon a trial de novo, the same judgment was entered. Upon appeal to the Court of Civil Appeals, the judgment of the district court was affirmed. The will was not produced, but there was sufficient evidence introduced by the proponent of the will to establish its execution and contents, and that it could not be found. The only question presented in this court as to the correctness of the ruling of the trial court upon those issues is as to the sufficiency of the evidence to show that the will had not been revoked. The two subscribing witnesses testified to the execution and contents of the will, and one of them also testified that immediately after the will was executed, which took place some time in the summer of 1900, the testatrix placed it in his custody, and asked him to keep it; and that some time thereafter Sam McElroy, the husband of the testatrix, came to him and said to him, "I came after that will." The witness was not sure whether he said, "I want it," or, "My wife wants it." He further testified that thereupon he delivered the will to McElroy. This, so far as the testimony shows, was the last that was seen of the will. The delivery of the will to McElroy, the husband, seems but a short time before the testatrix went to Ft. Worth to undergo an operation, and but a short time before her death. Sam McElroy also died before the trial of the case, without his deposition having been taken by either party.

The case was tried before the judge without a jury, and the first error assigned in the Court of Civil Appeals and in this court is to the effect that the trial court erred in holding that there was sufficient evidence to authorize a finding that the will had not been revoked. The authorities are practically in accord upon the proposition that where a will which, when last seen, was in the custody of the testator, cannot be found after his death, a presumption arises that it has been revoked. The proposition is evidently based upon the theory that it is a reasonable inference from the facts that the custodian, who in such case is the testator, has destroyed it for the purpose of revoking it. On the other hand, there is authority for holding that when at last accounts the will was in the hands of some one other than the testator—and especially in the possession of one to whose interest its provisions are adverse—the presumption of its destruction by the testator does not arise from the mere fact that it cannot be produced. It may be that, if the will is shown to have been destroyed, it would not be presumed that it was the act of some one other than the testator, for the reason, as given by the English courts, that it would not be presumed that the custodian had committed a crime. But in this case the testimony traces the will, when last seen, into the possession of the husband of the testatrix; and it also appears therefrom that by the instrument all her property was devised to the proponent, and that the husband was an heir to her estate. It does not show that the will was destroyed. It is merely shown that it could not be found. It may be that it has been lost. While it may not be permissible to infer that the husband had destroyed it, there is room for the presumption that he may have lost it. It is no offense against the law to lose an instrument in writing, and therefore it is not necessary to determine in the case whether to destroy the will of another, without authority to do so, is, under our law, where all penal offenses are defined by statute, a criminal act, or not. Therefore we think that under the evidence adduced in this case, according to the rule generally recognized by the courts, the trial judge was at least authorized to find, as he did find, that the will had not been revoked.

But it is argued on behalf of the plaintiffs in error that article 1904 of our Revised Statutes of 1895 makes a different rule. That article reads as follows: "Art. 1904. 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." In order to construe the fifth subdivision of the article, let us take the case of a will which has been produced without mutilation or other evidence of an intent to revoke it, and the execution of which has been duly proved. Does the statute make it incumbent upon the proponent in such a case to go further, and offer additional evidence to prove the negative, namely, that it has not been revoked in any of the methods provided by law? We think not. The will having been established as having been duly executed by the testator, and having been produced, unattended by any circumstances which cast suspicion upon it, the presumption of the continuity of the status applies, and makes a prima facie case as against a revocation. So, when the will cannot be produced, but its execution and contents are proved, and it is shown that when last seen it was in the custody of the testator, the presumption being that he has destroyed it with intent to revoke it, the presumption of continuity is rebutted; and, in the absence of some other evidence, the proponent must fail in his case. But no such presumption of revocation arising from the failure to produce the will when it has been traced to the hands of another than the testator, and cannot be found, the first presumption should prevail, and the evidence should be held sufficient at least to warrant a finding that the will had not been revoked. We think the Court of Civil Appeals were correct in overruling the first assignment of error.

During the progress of the trial the contestant offered to prove by F. C. Vaden: "That, on the day before Mrs. McElroy left Sherman to go to Ft. Worth to have an operation performed, he had a conversation with her, in which she told him that she had sent and gotten her will, and that she had destroyed it; that she had burnt it up, and that she had decided not to leave her property to Silas Phink; that she was dissatisfied with the way he had treated her, and with the way he was conducting himself. That she told him that Silas Phink had run through with all the property which he had gotten from the Vaden estate, and, if she and her husband were to leave him their property, he would run through with it the same way. That this conversation occurred with Mrs. McElroy while she was sick at Silas Phink's house on the day before she left to go to Ft. Worth." Counsel for the proponent objected to the testimony on the ground "that it was irrelevant, immaterial, hearsay, and self-serving." The objection was sustained by the court, and exception duly taken by the contestants. The ruling of the court was assigned as error in the court of Civil Appeals, and is also...