Richardson v. Ames

• Court: Texas Court of Appeals
• Writing for the Court: Leslie
• Citation: Richardson v. Ames, 2 S.W.2d 517 (Tex. App. 1928)
• Decision Date: 06 January 1928
• Docket Number: (No. 383.)
• Petition History: writ ref'd
• Parties: RICHARDSON et al. v. AMES et al.

2 S.W.2d 517

RICHARDSON et al. v. AMES et al.

(No. 383.)

Court of Civil Appeals of Texas. Eastland.

January 6, 1928.

Rehearing Denied February 17, 1928.

Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.

Suit by W. C. Richardson and others against David F. Ames, executor, and others, to set aside a judgment probating the will of J. S. Richardson, deceased. Decree for defendants, and plaintiffs appeal. Affirmed.

Morrow & Stollenwerck, of Hillsboro, and Penix, Miller & Perkins, of Mineral Wells, for appellants.

Ritchie & Ranspot, of Mineral Wells, for appellees.

LESLIE, J.

At his death, July 22, 1921, J. S. Richardson left a will bearing date February 10, 1910. This will was admitted to probate in the county court of Palo Pinto county, Tex., August 17, 1921. It was witnessed by J. L. Young and Ola E. Young.

In due time, by petition filed in said court, plaintiffs W. C. Richardson and others sought to set aside the judgment probating that will upon the ground that it had been by the testator revoked, both expressly and by implication, and never republished. Upon this petition a trial was had, resulting in a judgment confirming the probate of the will. An appeal to the district court and a trial there likewise resulted in a decree favorable to the defendants, appellees here.

Trial was before the court. No findings of fact or conclusions of law are in the record. Five propositions of law are laid under as many assignments of error. The first group of assignments challenge the sufficiency of the testimony to support the judgment of the trial court, and by the second complaint is made of the admission of a certain instrument as evidence. The latter group will first be disposed of.

The plaintiffs below, appellants here, contended that the will of date February 10, 1910, had been expressly and impliedly revoked by one of a later date. Plaintiffs offered the testimony of the witness Dr. Lee Seamster to the effect that "in 1913 and 1915, somewhere along there," he, at the instance and request of the deceased, J. S. Richardson and wife, witnessed for them a joint will that disposed of their property in a manner different from and inconsistent with the disposition made by the probated will. Felix F. Blackwell testified that he, in connection with Dr. Seamster and H. W. Wickersham, witnessed such instrument, but that "it was in the year of 1918." The instrument about which these witnesses testified was not produced in court nor accounted for, and as they recalled its provisions, it provided that in case of the death of either, the survivor should have the possession of the other's property and the rents therefrom so long as he or she lived, and at his or her death the property, if any remaining, should be divided among their respective heirs. Under such a will the plaintiffs would be beneficiaries.

After the plaintiffs had made out their case that such joint will probably existed and by its terms worked a revocation of the will of February 10, 1910, the defendants, appellees, to meet the plaintiffs' case, offered along with other testimony a certain instrument which appellee David F. Ames, executor (and beneficiary under the will), had produced by pasting on a paper numerous pieces of a torn document purporting to have been a will of Mrs. Richardson, executed by her January 16, 1918, and later destroyed by her, and the pieces thereof placed in an envelope and left at her death in a small iron box, where the envelope was found with other papers of a personal and private...