Pipkin v. Dezendorf

• Decision Date: 25 June 1981
• Docket Number: No. 17760,17760
• Parties: Charles S. PIPKIN, Jr., Appellant, v. F. C. DEZENDORF, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 924

618 S.W.2d 924

Charles S. PIPKIN, Jr., Appellant, v. F. C. DEZENDORF, Appellee.

No. 17760.

Court of Civil Appeals of Texas, Houston (1st Dist.).

June 25, 1981.

Rehearing Denied July 23, 1981.

Pope & Waits, Dougal Pope, Ed Engel, Houston, for appellant.

Liddell, Sapp, Zivley, Brown & LaBoon, Walter P. Zivley, Barbara N. Perkins, Houston, for appellee.

Before COLEMAN, C. J., and DOYLE, J.

DOYLE, Justice.

This is a will contest. Charles S. Pipkin, Jr. brings this appeal from an instructed verdict granted in favor of F. C. Dezendorf.

F. C. Dezendorf is the stepson of the deceased, Charles S. Gainer. Dezendorf filed an application to probate the will of the deceased dated May 16, 1977, or in the alternative to probate the deceased's will dated May 5, 1977.

Charles S. Pipkin, Jr., a nephew of the deceased, contested the application to probate the two 1977 wills on the ground that the deceased was unduly influenced and did not have testamentary capacity at the time he executed these wills. Appellant then filed an application to probate the deceased's will dated September 4, 1975 or in the alternative to probate the deceased's will dated October 24, 1974.

Trial was to a jury. During the trial, the court admitted into evidence both of the 1977 wills and the 1974 will. The original of the 1975 will could not be located. The court refused to admit this document as a will for probate, but admitted a xerox copy of the instrument only for the limited purposes of showing the pattern of the disposition of the deceased's property and for the purpose of revoking the 1974 will.

After both sides had rested, appellee made a motion for an instructed verdict on the basis that there was no issue to go to the jury since the 1975 will revoked the 1974 will. The appellant was not an interested person since he would not inherit anything even if the two 1977 wills were not admitted to probate.

By his point of error, appellant argues that the court erred in granting appellee's motion for an instructed verdict.

Appellee contends that appellant's point of error is not properly before this court because it is too general for consideration and does not comply with Rule 418, T.R.C.P. Benefit Trust Life Insurance Co. v. Baker, 487 S.W.2d 406 (Tex.Civ.App. Waco 1972, no writ); Wagon Wheel Club, Inc. v. Restaurant Equipment & Supply Company, 410 S.W.2d 788 (Tex.Civ.App. San Antonio 1967, no writ); Humber v. Morton, 448 S.W.2d 494 (Tex.Civ.App. Amarillo 1969, writ ref'd n. r. e.).

Appellant argues that Rule 418 should be liberally construed. Rule 422, T.R.C.P.; Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943); Gleason v. Davis, 155 Tex. 467, 289 S.W.2d 228 (1956). We will consider appellant's point of error as being properly before us.

Specifically, appellant contends that an instructed verdict was improperly granted in this case because there was a fact issue as to whether the deceased had testamentary capacity or sufficient sanity to revoke the 1975 will.

The controlling question presented by this appeal is whether the prerequisites of admitting a lost will to probate have been complied with by appellant as a condition precedent to submitting any fact issue concerning testamentary capacity or sanity. Among the several prerequisites that must be complied with before any will is admitted to probate is proof of non-revocation. Being the proponent of the 1975 will, appellant had the burden of supplying the evidence necessary for its admission to probate. The probate court refused to accept a copy of the 1975 will as evidence for purpose of probate. The testimony of appellant's witness, Melvin Engel, the attorney who prepared it, was that the 1975 will was last seen in the possession and control of the decedent, Charles S. Gainer, on September 4, 1975, the date of its execution. The original 1975 will was given to Mr. Gainer on that date. There is no evidence to indicate that anyone ever saw the 1975 original will after September 4, 1975. After decedent's death, a diligent but fruitless search was made to find the original 1975 will. These facts gave rise to the well established presumption that the 1975 will had been revoked. This presumption stands in the place of positive proof and it can be overcome only by clear and convincing evidence. Bailey v. Bailey, 171 S.W.2d 162 (Tex.Civ.App. Amarillo 1943, no writ); Berry v. Griffin, 531 S.W.2d 394 (Tex.Civ.App. Houston (14th Dist.) 1976, writ ref'd n. r. e.).

From a reading of the record, it appears obvious that appellant was unaware of the presumption of revocation in appellee's favor and that he had the burden to overcome it. Instead, appellant tried his case on the theory that a presumption of no revocation was with him since he proved that the original 1975 will could not be found and he had offered a signed xeroxed copy in its stead pursuant to article 3737c, T.R.C.S. The following exchange of statements was made before the bench at the conclusion of the evidence.

Mr. Pope: Your Honor, at this time we are going to renew our motion to offer this '75 will in evidence as a will which was executed by Mr. Gainer, and this is Contestant's Exhibit No. 2.

The cases are very uniform in holding that when a will is offered for probate which is regular on its face, and it's been proven it was executed with the solemnities and requirements as provided for under the Probate Code, that there is a rebuttable presumption that that will has not been revoked and there has been no evidence presented in this case which would show that '75 will has been revoked, unless you look at the '77 wills, and of course if the '77 wills are let's see the '75 will.

If the '77 wills are held null and void, then they cannot be used to revoke the...