Tynan v. Paschal

• Decision Date: 01 January 1863
• Citation: 27 Tex. 286
• Parties: E. K. TYNAN, ADMINISTRATOR, ETC., v. I. A. PASCHAL, NEXT FRIEND, ETC.
• Court: Texas Supreme Court

27 Tex. 286

E. K. TYNAN, ADMINISTRATOR, ETC.,

v.I. A. PASCHAL, NEXT FRIEND, ETC.

Supreme Court of Texas.

1863.

That an unrevoked will, which has been lost or destroyed previous to the death of the testator, may be probated and established by parol testimony, is beyond dispute, although not in direct terms authorized by the statute.

In such cases, however, it is incumbent on the party seeking to establish the will, not only to prove its due execution, but also to rebut the presumption of cancellation which arises from the fact that it cannot be found at the testator's death.

Before an instrument purporting to be of a testamentary character can be recognized as a valid will, all the constituent facts prescribed by the statute as necessary to its due execution, must be shown to have concurred.

After a general verdict upon the issue of devisavit vel non, it is questionable whether a party who has failed to ask the court below to supply omissions in the charge, can complain that the instructions given did not indicate to the jury all of the facts upon which, in arriving at their verdict, they should have passed.

But where the court undertook, in its charge, to expound to the jury the requisites prescribed by the statute for the due execution of a will, and the charge omitted some of the requisites so prescribed; and the omissions, when considered in connection with the testimony, appear to have had the effect of misleading the jury into the conclusion that the requisites so omitted were unnecessary: Held, that the omissions, under these circumstances, were error for which the judgment establishing the will should be reversed, although the opposing party did not ask the court below to supply such omissions in its charge.

Quære--Whether the statutory directions regulating the probate of wills prescribe the only modes of evidence by which, in all cases, the courts should be guided? Cases of spoliation, it seems, constitute at least one class of exceptions.

When, owing to the nature of the case, direct proof of the execution of a will cannot be adduced, resort may be had to secondary evidence; which, however, must be sufficient to establish, with reasonable certainty, all the facts which must concur in the valid execution of a will.

The fact that a will is lost does not dispense with proof that it possessed the requisites which, if it were produced before the court, would be essential to its validity.

Nor is it legitimate, except in cases of spoliation, to infer the due execution of a lost will from proof of facts which, if the will were before the court, would in no way tend to establish it, and which are consistent with the hypothesis of its invalidity.

The direct testimony prescribed by the statute for proof of the execution of wills is that of at least one of the attesting witnesses, if living and within the jurisdiction of the court; and if they are dead or beyond the jurisdiction of the court, then proof by two witnesses of the handwriting of two of the attesting witnesses, and also that of the testator, if he was able to write.

The subscribing witnesses to a lost will being dead, the testimony of one witness to the handwriting of one of the subscribing witnesses is not sufficient to authorize the probate of the will; nor can the insufficiency of such testimony be supplied by proof of declarations made by the supposed testator, subsequent to the execution of the instrument, to the effect that he had a will in existence of import similar to that offered for probate.

Such declarations, however, were admissible in evidence to rebut the presumption of a cancellation or revocation of the will, arising from its loss or destruction previous to the testator's death.

The conclusion deducible from analogous authorities is that, in order to establish the validity of a lost will, it is necessary to prove its execution with the formalities and solemnities prescribed by the statute; and this should be done by direct testimony, or by legal deductions from facts directly established.

A letter from a testator to his agent directing him to destroy the testator's will does not, ipso facto, operate a revocation of the will.

Whether the statute of this state will admit of the revocation of a will through the agency of an attorney in fact, and not in the presence of the testator, questioned but not decided.

APPEAL from Bexar. Tried below before the Hon. Thomas J. Devine.

This cause originated in an application to the county court by Paschal, the appellee, as next friend of Sarah and James Riddle, minors, for the probate of the last will and testament of John Riddle, deceased, which will was alleged to be lost or destroyed.

The appellant, E. K. Tynan, as administrator of the estate of John Riddle, was cited to show cause why the will should not be probated. The unknown and non-resident heirs of the deceased were cited by publication. At the September term, 1859, of the county court, Anna B. Riddle and others, who represented themselves as the sisters and brothers and heirs of John Riddle, appeared by attorney to show cause against the application.

At the November term, 1859, the county court, upon hearing the proofs taken in the cause, decreed them to be insufficient, and rejected the application for the probate of the will. The applicant thereupon appealed to the district court. At the spring term, 1860, the cause was submitted to a jury upon the proofs taken in the county court, with some additional evidence.

The leading facts disclosed by the proofs taken were, that the supposed testator, John Riddle, died in Bexar county in June, 1858; that he had gone to California in 1849, and, before starting, had informed the witness that he had made his will, by which he had left his property to Sarah and James Riddle, his niece and nephew. That soon after his return from California in 1856, he also informed this witness (Mrs. Canterbury, the mother of Sarah and James Riddle) that his object in coming back was to secure his property to his said niece and nephew, and that he regretted the death of Mr. Vanderlip, because he knew all about his will and his business in Texas. That he again informed witness that he had made his will previous to going to California. That at various times before and after his trip to California, witness had heard him say that he intended all his property to go to James and Sarah Riddle; that he did not wish it to go to his other relatives, as it had been made jointly by himself and his brother, the father of James and Sarah, and he considered they were entitled to it after his death. Witness did not know what had become of the will. That in speaking of his will, the said John Riddle, soon after returning from California, said that D. C. Vanderlip and Thompson Robinson, both of whom were then dead, were the witnesses to it. That he always evinced great hostility toward his other relatives in Pennsylvania, and frequently declared they should have none of his property. Witness further testified that John Riddle had acquired his property by the aid and assistance of his brother, Wilson, the father of Sarah and James, who brought him to Texas and took him into partnership in merchandising. That most of the property of John Riddle's estate properly belonged to that of his brother Wilson, who had settled it on him as trustee. That for these reasons, and because of his attachment to Sarah and James, and also of promises made to his brother Wilson at the death-bed of the latter, John Riddle had always declared his intention of settling his property on his said nephew and niece.

Sam S. Smith testified that he had known John Riddle from the year 1843, or 1844; knew him intimately, and also knew his signature. That he had seen a will made by John Riddle, and had no doubt of the signature thereto being genuine. Witness did not recollect the number of the witnesses to the will, but thought D. C. Vanderlip was one; did not recollect who the other was. The will was drawn up in the usual form, and was signed by John Riddle and two or three attesting witnesses. Was positive that it was in the handwriting of Vanderlip, who was Riddle's attorney-at-law; thinks the witnesses were over fourteen years, and competent. The will was dated some time in the spring of 1849. That Riddle wrote to witness from California that he had made a will previous to going to California, and had left all his property to Sarah and James Riddle, with no special legacies. That witness had received this will from J. L. Truehart, an agent of John Riddle, together with other books and papers. That in his letter to witness written in California, in 1855, John Riddle stated that his late agent, Truehart, would deliver to him a trunk containing his books and papers, in which trunk witness would find the will; that he understood his brother's widow, the mother of Sarah and James, had married again, contrary to his approbation, and he wished the witness to take the will and destroy it, as he did not wish Mrs. Riddle to have any of his land. That in May, 1856, John Riddle returned from California and stopped with Mrs. Canterbury (previously Mrs. Riddle) and her husband. That in some three or four weeks after his return, he called on witness, and, in course of conversation, witness told him that he had received the letter directing the destruction of the will, but that he, witness, did not think that he had the right to destroy it, and after consultation with counsel, had not destroyed it, but still had it in possession. That Riddle thereupon expressed in strong language his gratification that witness had not destroyed the will, stating his entire reconciliation to Mrs. Canterbury, and satisfaction with her and her husband, and repeating that witness knew that if he left anything when he died, it was for Sarah and Jimmy (the applicants), and no one else. Witness could not say positively whether the will ever passed again into the hands of John...