Seydler v. Baumgarten

• Court: Texas Civil Court of Appeals
• Writing for the Court: GANNON; CODY
• Citation: Seydler v. Baumgarten, 294 S.W.2d 467 (Tex. Ct. App. 1956)
• Decision Date: 20 September 1956
• Docket Number: No. 13000,13000
• Petition History: writ ref'd n.r.e.
• Parties: F. H. SEYDLER et al., Appellants, v. Erna Strobel BAUMGARTEN er al., Appellees.

Page 467

294 S.W.2d 467

F. H. SEYDLER et al., Appellants, v. Erna Strobel BAUMGARTEN er al., Appellees.

No. 13000.

Court of Civil Appeals of Texas, Galveston.

Sept. 20, 1956.

Rehearing Denied Oct. 11, 1956.

Harry D. Larson, Eagle Lake, for appellants.

Hodges, Moore & Gates and Otto Moore, Jr., Columbus, Earl A. Brown, Chas. B. Wallace, and R. T. Wilkinson, Jr., Dallas, for appellees.

GANNON, Justice.

This is a plenary or independent suit originally brought in the county court of Colorado County under the provisions of Articles 5534, 3433 and 3434, V.A.T.S., Probate Code, arts. 93, 11, 33, to set aside the probate of an instrument dated May 26, 1938, previously established by judgment of that court as the last will of George Seydler, deceased. Plaintiffs joined with their suit to set aside the probate of the instrument of May 26, 1938, an application to probate a later instrument dated June 8, 1938. On appeal to the district court, at a trial before the court without a jury, all relief prayed for by plaintiffs and applicants was denied, and they appeal to this Court.

The plaintiffs are F. H. Seydler, Maurice Seydler and Richard Seydler. The defendants are Erna Strobel Baumgarten, a widow, who is sued individually and in her capacity as guardian of Myrna Loy Baumgarten, the minor Myrna Loy Baumgarten being alleged to be the sole heir of Victor Baumagrten, deceased, and others, including Magnolia Petroleum Company, who, it is alleged, assert an interest in property belonging to the estate of the decedent.

The case was tried in the District Court on an agreed statement 'constituting all the facts involved.' From this statement which incorporates the testimony of the witnesses in narrative form, the following appears:

1. The cause was properly and regularly before the District Court on appeal from the judgment of the County Court.

2. On January 5, 1955, Erna Strobel Baumgarten made application to the County Court of Corlorado County to probate as a muniment of title an instrument dated May 26, 1938, as the last will and testament of George Seydler, deceased.

3. The instrument dated May 26, 1938, is a will of George Seydler, deceased. It recites that at the time of its execution George Seydler was a single man. By this will there is bequeathed to a sister and brother of decedent $1 each, all the rest and residue of the estate, after payment of debts and funeral expenses, being devised and bequeathed to Erna Strobel Baumgarten, a niece, and to Victor Baumgarten, her husband, a nephew by marriage.

4. After due notice and citation, the application to probate was heard and granted and the instrument of May 26, 1938, was admitted to probate as a muniment of title by order dated January 17, 1955.

One of the attesting witnesses, W. R. Keuper, appeared at the hearing in the County Court and proved the execution of the instrument dated May 26, 1938. The agreed statement makes reference to Keuper's testimony in the County Court and it appears in the transcript as a part of the papers in the District Court. This testimony is in the usual short form of 'Proof of Will' and contains the following relating of nonrevocation as the testimony of this witness given at the hearing on January 17, 1955: 'Said George Seydler died without having revoked said last will and testament.'

5. On March 25, 1955, plaintiffs filed this independent suit in the County Court of Colorado County to set aside the probate of the instrument of May 26, 1938, and joined therewith an application to probate as the last will and testament of the decedent, but as a muniment of title only, an instrument dated June 8, 1938. The sole ground of plaintiffs' independent suit to set aside the probate of the instrument of May 26, 1938, was that this instrument was not the last will and testament of the decedent because it was revoked by a later valid will, to wit: the instrument of June 8, 1938.

The instrument of June 8, 1938, in full, is as follows:

'The State of Texas

'County of Wharton

'Know all men by these presents, that I, George Seydler, of the County of Wharton, and State of Texas, being in good health, and of sound and disposing mind and memory, do make and publish this, my last will and testament, hereby revoking all wills by me at any time hereto-fore made. (Emphasis supplied.)

'First: I direct that my just debts shall be paid, and that the legacies hereinafter given shall, after the payment of my debts, be paid out of my estate.

'Second: I give all my real and personal property to my nephews as follows: F. H. Seydler-one-third, (1/3), Maurice Seydler-one-third (1/3) and Richard Seydler-one-third (1/3).

'Third: I hereby constiture and appoint John I Marik sole executor of this my will without bond.

'In witness whereof I have hereunto set my hand this the 8th day of June, A.D., 1938, in the presence of L. G. Lavendusky and Roy H. McConnaghy who attest the same at my request.

(Signed) George Seydler

'The above instrument was now here subscribed by George Seydler, the testator in our presence, and we, at his request, and in his presence, sign our names, hereto as attesting witnesses:

(Signed) L. G. Lavendusky

(Signed) Roy H. McConnaghy'

6. The plaintiffs' witnesses, L. G. Lavendusky, Roy H. McConnaghy and John D. Marik, testified by deposition taken in the counties of their respective domiciles. Their testimony appears in the agreed statement in narrative form, as follows:

L. G. Lavendusky

'* * * That he now resided at Temple in Bell County, Texas, and had resided there since November, 1939. That on June 8, 1938, he resided at East Bernard in Fort Bend County, Texas, where he had lived until he moved to Temple. He was over fourteen years of age in 1938. That he knew George Seydler in June, 1938, and would judge Seydler to be in his seventies at that time. That Seydler appeared to be of sound mind at that time. That after inspecting the original of the instrument dated June 8, 1938, and purporting to bear the signatures of George Seydler, L. G. Lavendusky and Roy H. McConnaghy, he could and did identify the signature of L. G. Lavendusky as being his own signature. That he did not recall ever having seen the instrument before and that he could not remember signing the same. He could not identify the signatures of any other person on the instrument.'

Roy H. McConnaghy

'* * * That he now resided at East Bernard in Fort Bend County, Texas, and had lived there since 1911. That on June 8, 1938, he was 46 years of age. That he had formerly known a George Seydler who used to run a store in East Bernard, but that he did not know whether said George Seydler was living or dead on June 8, 1938. That the last time he saw George Seydler was when Seydler came down from Schulenburg and he and Seydler had some drinks at Old Dutch's and Seydler passed out. That after inspecting the original of the instrument dated June 8, 1938, and purporting to bear the signatures of George Seydler, L. G. Lavendusky and Roy H. McConnaghy, he could and did identify the signature of Roy H. McConnaghy as being his own signature. That he did not recall ever having seen the instrument before and that he could not remember signing the same. He could not identify the signatures of any other person on the instrument.'

John I. Marik

'That he now resided at East Bernard in Fort Bend County, Texas, and had lived there, or near there, for all of his life, 55 years. That he was now Justice of the Peace, City Tax Collector, and engaged in the insurance business, and had formerly been School Tax Collector also. That for about twenty years prior to 1935 he worked as a bookkeeper for J. G. Leveridge Company at East Bernard, in the lumber, feed and grocery business. That he knew George Seydler first in about 1925 to 1928. That George Seydler was approximately 70 to 72 years of age in 1938. That while working for the Leveridge Company he had occasion to see Seydler write his name and was familiar with his signature. That after inspecting the original of the instrument dated June 8, 1938, and purporting to bear the signatures of George Seydler, L. G. Lavendusky and Roy H. McConnaghy, he could and did identify all three signatures as being their own signatures. That he did not see either George Seydler, L. G. Lavendusky or Roy H. McConnaghy sign the instrument dated June 8, 1938 and shown to him.'

Testimony of the witnesses, Agnes Myree Seydler, Isabelle Cardenes and F. H. Seydler was included in the agreed statement in narrative form as the same was given in the County Court, as follows:

Agnes Myree Seydler

'That she was the wife of F. H. Seydler, one of the plaintiffs, and resided with her husband at 826 Eastland, Houston, Texas, where they had lived for approximately 24 to 25 years. That she knew George Seydler for about 30 years. That he visited in her home on several occasions and that she had seen him write his name and could identify his signature. After being shown the instrument dated June 8, 1938, she could identify the signature 'George Seydler', subscribed to such instrument, as the signature of George Seydler, now deceased, who was the uncle of her husband, F. H. Seydler.'

Isabelle Cardenes

'That she was formerly Isabelle Seydler and that George Seydler was her uncle. That she was now 50 years of age and knew George Seydler in June of 1938, and that he was over 21 years of age at that time. That he visited in her hom in 1938 and he was of sound mind at that time. That she had seen him write his name on different occasions and could identify his signature. After being shown the instrument dated June 8, 1938, she could and did identify the signature 'George Seydler,' subscribed to such instrument, as the signature of George Seydler, now deceased, who was the uncle of Isabelle Cardenes.'

G. H. Seydler

'That he was familiar with the signature of George Seydler, his uncle, and after being shown the instrument dated June 8, 1938, he identified the signature of 'George...