Sien v. Beitel

• Decision Date: 15 December 1926
• Docket Number: (No. 7646.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 289 S.W. 1057
• Parties: SIEN et al. v. BEITEL.
• Court: Texas Court of Appeals

Page 1057

289 S.W. 1057

SIEN et al. v. BEITEL.

(No. 7646.)^*

Court of Civil Appeals of Texas. San Antonio.

December 15, 1926.

Rehearing Denied January 19, 1927.

Appeal from District Court, Kerr County; R. H. Burney, Judge.

Application by Jesse John Beitel, Sr., to probate the will of Charles F. Beitel, deceased, contested by Louise E. Sien and others. From a judgment probating the will, contestants appeal. Affirmed.

H. C. Geddie, of Kerrville, and Douglas & Carter, of San Antonio, for appellants.

W. G. Garrett, of Kerrville, and Terrell, Davis, Huff & McMillan, of San Antonio, for appellee.

COBBS, J.

This suit grows out of a contest of the alleged last will and testament of Charles F. Beitel, which was duly probated in the county court of Kerr county and appeal perfected to the district court of said county. The application for probate was filed by appellee, and the will was contested by appellants on four grounds:

First: That it had been revoked by the testator through instructions given to a nurse to destroy the will, which she advised him she had done, but in fact did not do, but caused its preservation.

Second: That it was revoked by the execution of a subsequent will leaving the bulk of his estate to contestants and their sister, Annie Beitel, which will was attested by A. L. Starkey and another, not named.

Third: That it was revoked by the action of the testator in striking from the will the bequest: "To Allie Beitel, $500.00."

Fourth: Because the testator had been unduly influenced to make said will by Albert Beitel, Sr., Jesse John Beitel, Sr., and Laura Beitel Penalosa. Because no evidence was offered to show any undue influence, that ground was abandoned and is no longer in the case.

On the first ground, that the will was destroyed, appellants undertook to show that testator requested Mrs. Cooper, who was nursing him at the time, to read his will over to him. This will bears date of August 28, 1920, and was witnessed by Minnie L. Hudspeth and Frederick F. Nyc. After she read it over to him he took the will and violently tore the envelope around it, attempted to destroy it, but failed to do so himself and requested Mrs. Cooper to do it. She pretended to destroy it, but did not. However, she represented to him that she had destroyed the will and he believed her. The contention of appellants is that, it being the clear intention of the testator to destroy and revoke the will because it did not express his desire and wishes, the document, even though retained, was void; that his intention and desires were defeated by the act of Mrs. Cooper, which was in law a fraud upon him, that operated as a complete revocation and destruction of the entire will. This occurred about six months prior to testator's death and he was never advised that the will had not been destroyed as he instructed Mrs. Cooper to do. The court refused to allow appellants to make this proof, and this was assigned as error. The testimony of Mrs. Cooper, offered by appellants, is set out in the bill of exception, as follows:

"Q. Why did he say that he had struck it out? A. He said he didn't want it in there. I said, `Why did you strike Mr. Alley's name out?' He said, `I don't want it in there.' I said, `Why don't you strike the whole thing out then?' and I said, `Haven't you kind of ruined it?' He said, `Well, it is no good any way, I want it destroyed'; and he just took up the envelope and tore it all to pieces. I said, `Don't do that.' He had taken it out of the envelope when he asked me to read it to him.

"Q. When did he say that he struck this out? A. He didn't give me the exact date. I said, `When did you do that?' He said, `I did it two or three months after it was made.' He wasn't sure. That was the conversation."

This court has several times passed upon the subject in respect to the requirement of our statute with reference to the revocation of wills. That question was fully presented and discussed in Clover v. Clover (Tex. Civ. App.) 224 S. W. 916, affirmed by the Supreme Court, and more especially and elaborately discussed in Re Brackenridge's Estate (Tex. Civ. App.) 245 S. W. 786. Our statute, article 7859, provides that no clause of a will or devise shall be revoked "except by a subsequent will, * * * executed with like formalities, or by the testator destroying, canceling or obliterating the same, or causing it to be done in his presence." There was no proof admitted touching the reason for such erasure.

The court did not err in that ruling. If it had been admitted, it would have been harmless; besides it would have shown that it was done by the testator himself and, of course, "in his presence." It was not shown to be done by another person. No doubt the testimony would have shown a desire to destroy the whole will, but it was not done in his presence or anywhere else, but remained in existence and presented properly to be probated, and that is what the statute required, or, if not so done, it still remained undestroyed and as his very last will and testament, because it "was made in conformity" with the requirements of the law, and never revoked by a subsequent will, codicil, or declaration in writing executed with like formalities, or by the testator destroying, canceling the same, or causing it to be done in his presence.

Here its destruction is sought to be shown; that he caused it to be done (by Mrs. Cooper) in his presence. She did not do as requested nor as she promised. Under this statute, which is wise and means something, in such a case the destruction must occur in his very presence. She by her act defeated his purpose and left undestroyed and still in existence his last will and testament — the will it is claimed he desired destroyed. The law in reference to the destruction of wills cannot be so affected and defeated. A will once executed in accordance with law cannot be revoked, except it follows the rules prescribed by the express terms of the law. Clover v. Clover, supra; In re Brackenridge's Estate, supra. The statute is mandatory, clear, and explicit, and a will, once executed according to law cannot be revoked, except in one of the ways prescribed by the statute. Morgan v. Davenport, 60 Tex. 230; Kennedy v. Upshaw, 64 Tex. 411; Hawes v. Nicholas, 72 Tex. 481, 10 S. W. 558, 2 L. R. A. 863; Evans v. Evans (Tex. Civ. App.) 186 S. W. 815.

In the Brackenridge Case, reported in 114 Tex. 433, 267 S. W. 247, 270 S. W. 1001, the Supreme Court, speaking in the matter, said:

"Articles 7857 and 7858 provide the requisites and methods by which a valid will may be executed. The modes of revoking a will are as definitely prescribed in article 7859 as the modes of making it, and no essential part of the one can be dispensed with any more than the other." Locust v. Randle, 46 Tex. Civ. App. 544, 102 S. W. 946; Tynan v. Paschal, 27 Tex. 286, 84 Am. Dec. 619; Graham v. Burch, 47 Minn. 171, 49 N. W. 697, 28 Am. St. Rep. 339; Trice v. Shipton, 113 Ky. 102, 67 S. W. 377, 101 Am. St. Rep. 351; Ruling Case Law, vol. 28, § 143, pp. 184, 185.

The will was produced in court and its execution proven, and no legal evidence tendered or introduced by appellants to show that it was revoked. Appellee, on the contrary, has shown all that was necessary to entitle the will under the law to be probated. McElroy v. Phink, 97 Tex. 155, 76 S. W. 753, 77 S. W. 1025.

In the case of Schnable v. Henderson (Tex. Civ. App.) 152 S. W. 231, the testator, instead of erasing the item by pen or pencil, cut the entire clause out. Instead of eliminating by erasure it was cut entirely out; "thus that provision was revoked in a manner prescribed by the statute" in question, so said the court. And it made no difference whether it was a holographic will or not. The only difference between a holographic will in this respect and the one under...