Noel v. Orr, 11528
| Decision Date | 13 September 1967 |
| Docket Number | No. 11528,11528 |
| Citation | 418 S.W.2d 690 |
| Court | Texas Court of Appeals |
| Parties | W. L. NOEL et al., Appellants, v. Merritt Dell ORR et al., Appellees. . Austin |
Phillip Palmer, William R. Lozano, San Antonio, for appellant.
Carter, Callender & Onion, James L. Branton, San Antonio, for appellee.
This suit is a collateral attack on the judgment of the County Court of Comal County, Texas, rendered October 2, 1961, admitting to probate a writing as the last will and testament of Cora Doell Noel, deceased. 1
The form of this suit is one to remove the judgment probating such will as a cloud on the title to certain described real estate in Comal County which the testatrix owned at the time of her death.
The parties to this suit are W. L. Noel, Maxie Luppens and Monty Doell, plaintiffs, and Merritt Dell Orr, Erna Doell Thain and husband George Thain, defendants.
These parties claim an interest in the property in suit either under the will of Cora Doell Noel or as her heirs and the heirs of her deceased husband, H. L. Noel.
The trial court rendered judgment that plaintiffs, appellants here, take nothing by their suit.
Appellants present a single point which is that the judgment of the County Court admitting the writing tendered as the will of Cora Doell Noel to probate is void and that the trial court erred in not removing such judgment as a cloud on the title to the real estate in suit.
The application to probate the will of Cora Doell Noel contained this allegation:
H. L. Adams, a witness, testified in support of the application to prove such will. His testimony was reduced to writing sworn to, and was filed in the probate cause. We quote from such affidavit as follows:
A similar affidavit made by Erna Doell Thain was filed in such probate cause.
The judgment probating the will of testatrix, we copy in full:
IN THE MATTER OF THE ESTATE OF CORA DOELL NOEL, DECEASED
ORDER PROBATING WILL AS MUNIMENT OF TITLE.
ON THIS 2nd day of October, 1961, came on to be heard the Application for Probate of the Last Will and Testament of Cora Doell Noel, Deceased, as a Muniment of Title, said Application having been filed by Merritt Dell Orr, nephew of said deceased.
It appearing to the Court that legal notices of the filing of said Application have been issued and posted and served in the manner and for the length of time required by law, and that no one came to contest the same; and it further appearing from the testimony of the respective parties who have sworn to and subscribed in open Court the Affidavits filed herein, that the said Cora Doell Noel died in Comal County, Texas, where her residence and domicile were situated, on September 8, 1958; that this Court has jurisdiction of said estate; that the said Cora Doell Noel was 58 years of age at the time of making her said Will; that the handwriting in the signature of said deceased is her true signature; that the said Cora Doell Noel was of sound and disposing mind and memory at the time of making said Will, and that to their knowledge said Will has not been revoked;
And it further appearing to the Court that said Will was executed by said deceased with the formalities and solemnities and under circumstances required by law to make it a valid Will:
It is therefore ORDERED, ADJUDGED AND DECREED by the Court that said Will is hereby proven, established and probated, and admitted to probate and record as the Last Will and Testament of Cora Doell Noel, Deceased, said Will being probated as a Muniment of Title, there being no debts and no need for administration.
/s/ Clarence W. Rice
COUNTY JUDGE, COMAL COUNTY, TEXAS.'
A photostatic copy of the writing offered as the will of Cora Doell Noel appears in the record. It is all handwritten.
We quote from appellants' brief the substance of their argument that the probate judgment is void:
'Appellants contend that the County Court in this case failed to act in conformity with the Probate Code so as to validity exercise the probate jurisdiction granted to it by the Constitution.
V.A.T.S. Probate Code, Sec. 60 in part provides: 'Where the will is written wholly in the handwriting of the testator, the attestation of the subscribing witnesses may be dispensed with.'
V.A.T.S. Probate Code, Sec. 84(b) provides: 'If not self-proved as provided in this Code, a will wholly in the handwriting of the testator may be proved by two witnesses to his handwriting, which evidence may be by sworn testimony or affidavit taken in open court, or, if such witnesses are non-residents of the county or are residents who are unable to attend court, by deposition, either written or oral, taken in the same manner and under the same rules as depositions taken in other civil action.'
The alleged will, affidavits and the Judgment, i.e., the record, reflect that the proof offered by Appellee, Merritt Dell Orr, was not that required for the probate of a holographic will. The instrument filed by Appellee, Merritt Dell Orr, is obviously wholly handwritten. However, the Probate Code requires that before any such instrument can be admitted to probate as a Last Will and Testament, same must be proved by two witnesses to the handwriting which evidence may be sworn testimony or affidavit taken in open court, that it was wholly in handwriting of the testator.'
The principles to be applied here do not seem to be in dispute. We believe they are well settled. The subject has been recently treated by Gus M. Hodges, Professor of Law, University of Texas, in Articles,...
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