Morris v. Morris

• Citation: 642 S.W.2d 448
• Decision Date: 24 November 1982
• Docket Number: No. C-1252,C-1252
• Parties: Michael Lee MORRIS, et al., Petitioners, v. Sue MORRIS, Respondent.
• Court: Supreme Court of Texas

Page 448

642 S.W.2d 448

Michael Lee MORRIS, et al., Petitioners, v. Sue MORRIS, Respondent.

No. C-1252.

Supreme Court of Texas.

Nov. 24, 1982.

Rehearing Denied Dec. 31, 1982.

Hight & Hight, Thomas H. Hight, Dallas, Thomas Black, San Antonio, for petitioners.

Stephens, Corn & Rosenstein, Bill D. Rosenstein, Tyler, O'Quinn & Associates, John O'Quinn, Houston, for respondent.

WALLACE, Justice.

This is a will contest. Pursuant to jury findings, the trial court rendered judgment denying probate. The court of appeals reversed the trial court and rendered judgment that the will be admitted to probate. 631 S.W.2d 188. We affirm the judgment of the court of appeals.

On December 25, 1974, Floyd Lee Morris, testator, executed a will which left his entire estate to his minor son, Floyd Lee Morris, Jr., and which excluded his two adult sons, Gerald Morris and Michael Morris, contestants. Sue Morris, the wife of testator and mother of Floyd Lee Morris, Jr., was named independent executrix and trustee of the estate. In the trial court this will was attacked on several grounds, but the only issue reaching this Court concerned revocation. In addition to that issue, we will discuss the questions of fraud and constructive trust.

REVOCATION

Contestants allege that Floyd Lee Morris revoked his will. They base that allegation on the testimony of his aunt, Georgia Marguerite Morris (Marguerite). She testified that in early January of 1975, at the request of Floyd Morris, she drove from her home in Houston to visit the testator at his home in Palestine, Texas. When she arrived, Floyd and his wife, Sue, were lying in bed. Floyd told Marguerite that he was supposed to have signed a will while he was in the hospital in Tyler. Sue then said, "He left me out in the cold. He didn't even leave a roof over my head. Everything was left to Lee Morris." Floyd then said, "Sue, get that will. I want Mutt (Marguerite) to read it. Then I want it destroyed."

Marguerite further testified that Sue Morris got out of bed, went to the next bedroom, took an envelope from her purse, and when she, Marguerite, reached for it, Sue said, "Since I have heard so damn much about this will since you signed it, I will destroy it for you right now." Whereupon Floyd said, "Well I demand it." Sue then tore the envelope into shreds and walked out of the room.

The will of December 25, 1974 was not destroyed. It was introduced in the trial court with no evidence of any attempt to mutilate it. Contestants contend that the intent of Floyd Lee Morris to destroy the will, plus the circumstances described above which would cause him to reasonably believe that the will had been destroyed in compliance with Sec. 63 of the Texas Probate Code, is sufficient to revoke the will even though it was not actually destroyed. Section 63 of the Probate Code provides:

No will in writing, and no clause thereof or devise therein, shall be revoked, except by a subsequent will, codicil, or declaration in writing, executed with like formalities, or by the testator destroying or cancelling the same or causing it to be done in his presence.

This Court has long held that the statutory method of revoking a will is exclusive. Brackenridge v. Roberts, 114 Tex. 418, 267 S.W. 244, 247 (1924). Morgan v. Davenport Since the will of Floyd Lee Morris was not revoked by a subsequent will, codicil, or declaration in writing, nor was it destroyed, it was not revoked.

60 Tex. 230, 237 (Tex.1883). The intent of a testator to destroy a will, standing alone and absent a later written express or implied revocation, cannot abrogate the clear wording of the statute. Therefore, we hold that the mere...