Puckett v. Brittain

• Decision Date: 13 October 1931
• Docket Number: Case Number: 20555
• Parties: PUCKETT et al. v. BRITTAIN.
• Court: Oklahoma Supreme Court

1931 OK 604

3 P.2d 876

152 Okla. 184

PUCKETT et al. v. BRITTAIN.

Case Number: 20555

Supreme Court of Oklahoma

Decided: October 13, 1931

Syllabus

¶0 Wills--Will Revoked by Subsequent Will not Offered for Probate.

A prior will is revoked by the execution of a subsequent will containing an express revocation clause, even though the latter instrument is not offered for probate.

Appeal from District Court, Okmulgee County; James M. Hays, Judge.

In the matter of probate of will of James Henry Puckett; W. J. Brittain, proponent; T. C. Puckett et al., contestants. Judgment for proponent, and contestants appeal. Reversed.

Pryor & Stokes, Hugh M. Sandlin, and G. L. Bynum, for plaintiffs in error.

E. W. Smith and Lafayette Walker, for defendant in error.

HEFNER, J.

¶1 This is an appeal from a judgment of the district court of Okmulgee county admitting to probate the will of James Henry Puckett, deceased. The will was executed in the year 1916 and the major portion of the estate was bequeathed to W. J. Brittain, who is a brother-in-law of testator.

¶2 The probate of the will was contested by T. C. Puckett, who is a nephew and heir at law of deceased, on the ground that it was revoked by a later will executed in the year 1923.

¶3 J. V. Long, an attorney residing in Henryetta, on behalf of contestant, over objection of proponent, testified as follows: In the month of May, 1923, he drew a will for deceased in which he revoked all prior wills. The will was drawn at the request of deceased and by him signed in the presence of Mrs. O'Dell and West Carter, who, at his request, witnessed the execution of the will. The will was then delivered to testator, who took it with him when he left the office. This evidence was objected to by petitioner on the ground that contestant had not offered that will for probate and that there was no sufficient proof of its loss. The trial court at the time reserved its ruling to the objection, but at the conclusion of the witness's evidence sustained proponent's objection and excluded the evidence.

¶4 Contestant also sought to prove by Mrs. O'Dell and West Carter, subscribing witnesses to the will, that it was executed by deceased in their presence and that they, at his request, witnessed the execution thereof, and that deceased stated to them that he had drawn a will and desired them to witness its execution. This evidence was also, upon objection of proponent, excluded. The court also excluded evidence offered by contestant that deceased had stated that he changed the 1916 will by the execution of a new will and that the new will was kept by him in his safe at his place of business. Other evidence was also offered and excluded which tended to show that the 1916 will had been revoked. In our opinion the court erred in excluding this evidence. It appears that it was excluded on the theory that such evidence was not admissible until and unless the new will was offered for probate. We do not think this theory correct.

¶5 Section 11246, C. O. S. 1921, provides:

"If, after making a will, the testator duly makes and executes a subsequent will, the destruction, canceling or revocation of the latter does not revive the former, unless it appears by the terms of such revocation that it was his intention to renew the former will, or unless after such destruction, canceling, or revocation, he republished the prior will."

¶6 Under this section of the statute, even though the will of 1923 had been canceled or destroyed by deceased, it would...