McLeroy v. Douthit
| Decision Date | 26 March 1976 |
| Docket Number | No. 17709,17709 |
| Citation | 535 S.W.2d 771 |
| Parties | Marjorie L. McLEROY et al., Appellants, v. Nola Mae DOUTHIT, Appellee. |
| Court | Texas Court of Appeals |
Farrar & Claunch, and James R. Claunch, Fort Worth, for appellants.
Mehl, Williams, Cummings & Truman, and B. Michael Cummings, Fort Worth, for appellee.
Nola Mae Douthit, former wife of Taylor Denney Barnett, deceased, filed her former husband's will, with application for its probate, in the Probate Court of Tarrant County in January, 1975. Over protest of contestants it was ordered admitted to probate on July 17, 1975. Contestants were Marjorie L. McLeroy and her sister, both daughters of Mrs. Douthit and Taylor Denney Barnett, deceased. They appealed the order of July 17, 1975, and are the appellants in this case.
Judgment reversed. Judgment here rendered denying probate of purported will of Taylor Denney Barnett, deceased.
Premise of our action of reversal is the conclusion that the will was not valid, but to the contrary was void because it did not meet the requirements of Texas statutes necessary to be complied with in order to make a proper will. In abbreviated form we will copy the will:
'THE STATE OF TEXAS
'COUNTY OF TARRANT
'KNOW ALL MEN BY THESE PRESENTS, that I, Taylor Denney Barnett . . . do hereby make, publish and declare this to be my last will and testament . . ..
(Here follows bequest of all his estate to Nola Mae, his wife, and appointing her to be independent executrix without bond, etc.)
'This I make, publish and declare as my last will and testament, hereunto signing and subscribing my name this the 18th day of November, A.D. 1955, in the presence of the attesting witnesses listed below, each of which are above the age of twenty-one years and being credible persons, attest the same.
/s/ 'Taylor Denney Barnett
'Testator'
(Here ends the instrument.)
Following the above, and appended thereto upon a separate sheet of paper, is the affidavit:
'THE STATE OF TEXAS
'COUNTY OF TARRANT
'Before me, the undersigned authority, on this day personally appeared Taylor Denney Barnett, known to be the testator and the witnesses, Lee S. Secrest and C. W. Goerte whose names are subscribed to the annexed instrument in their respective capacities, and all of said persons being by me duly sworn, the said Taylor Denney Barnett, the testator, declared to me and to the said witnesses in my presence that the said instrument is his last will and testament and that he had willingly made and executed it as his free act and deed for the purposes therein expressed, and the said witnesses, each on his oath stated to me in the presence and hearing of said testator that the said testator had declared to them that said instrument is his last will and testament, and that they executed same as such and wanted each of them to sign it as witness; and upon their oath each witness stated further that they did sign the same as witnesses in the presence of said testator at his request; that they are more than twenty-one years old.
/s/ 'Taylor Denney Barnett
'Testator
/s/ 'Lee S. Secrest
'Witness
/s/ 'C. W. Goerte
'Witness
'Subscribed and acknowledged before me by the said Taylor Denney Barnett, the testator, and subscribed and sworn to before me by the said Lee S. Secrest and C. W. Goerte, as witnesses, this the 18th day of November, A.D. 1955.
/s/ 'Tom C. Chapman
'Notary Public, Tarrant
County, Texas.'
From the foregoing it may be observed that we are dealing with a will which is demonstrably void 'on the face of the record.' The will is indeed the most important of all the instruments in the 'record' or 'judgment roll' where it is that will which is presented for probate.
Its character as a void will is because of the absence, as a part of the will itself, of signatures of at least two witnesses who have subscribed their names in their own handwriting upon the will in the presence of the testator. This is the requirement of law where a will is not wholly in the handwriting of a testator. V.A.T.S. Probate Code, Sec. 59, 'Requisites of a Will', and V.A.T.S. Art. 8283, the statute it succeeded on January 1, 1956 which bore identical provision. McGrew v. Bartlett, 387 S.W.2d 702 (Tex.Civ.App., Houston, 1965, error refused).
The holding in McGrew is in accord with those in the greater part of the United States, the general rule being that a will must be executed in accordance with statutory requirements or it will be void, and these requirements apply to all instruments which are testamentary in character, unless otherwise proved. 94 C.J.S. 'Wills' § 167, p. 964, 'Statutory Requirements'.
The only difference in the facts in McGrew from those in the instant case is the presence of the signature of Taylor Denney Barnett, as testator, on the face of the will, where in McGrew the testator had not signed the will, but had signed only the self-proving affidavit attached thereto. In both...
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