Walker v. Fields

• Decision Date: 24 January 1923
• Docket Number: (No. 377-3520.)
• Parties: WALKER et al. v. FIELDS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

247 S.W. 272

WALKER et al. v. FIELDS et al.^*

(No. 377-3520.)

Commission of Appeals of Texas, Section A.

January 24, 1923.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Will contest between Brock Walker and another, proponents, and Ola Fields and others, contestants. Judgment refusing probate of the will was affirmed by the Court of Civil Appeals (221 S. W. 632), and proponents bring error. Reversed and rendered.

Lee R. Stroud, of Dallas, for plaintiffs in error.

Wynne & Wynne, of Kaufman, for defendants in error.

GALLAGHER, P. J.

Plaintiffs in error, Brock Walker and Mrs. Fannie Rhodes, in the county court of Kaufman county offered for probate a nuncupative will of their father, S. F. Walker, deceased. Defendants in error, Ola Fields and others, heirs at law of the deceased, contested the probate of the same. There was a hearing of the application for probate before the county court more than six months after the speaking of the testamentary words, and that court refused to probate the will. On appeal to the district court a trial de novo was had before a jury. The court instructed a verdict for contestants, and entered judgment thereon refusing to probate said will. The Court of Civil Appeals affirmed the judgment. 221 S. W. 632. The case is before us on a writ of error granted by the Supreme Court on the application of the proponents of said will.

The estate of the testator bequeathed by said will consisted of personalty of the probable value of $5,000. The testator called proponent Brock Walker, Oscar Marshall, and two others to his bedside, and stated to them, in substance, that he had been working and saving for years for his daughter, Fannie Rhodes, and her children, in order that they might have something to live upon after his death; that he realized that he had not long to live; that it was his will that all his property should pass to said daughter, and her two children; that he wanted his son, Brock, to take charge of all of his property at his death, and see that it went to them, and that he wished all present to bear witness that such was his will. There is no contention that any of the statutory requirements of a valid nuncupative will to entitle such will to probate were not complied with, except the provision requiring the testamentary words to be reduced to writing within six days after they were spoken.

The testimony showed without contradiction that the next morning after the making of said will Brock Walker reduced the same to writing. None of the other witnesses were present at the time. Shortly thereafter, and within the statutory period of six days, he showed the writing to said Oscar Marshall. The other two called as witnesses by the testator never saw the writing until they testified before the county court. All four of said witnesses agreed as to the testamentary words so spoken and as to the testator's calling on them to witness the same. They all testified that the words so spoken by the testator were the same as the words of said writing. There was testimony that said four witnesses, on the same day, and shortly after the making of the will, got together and talked about just what the testator had said, and that several times afterwards they met and discussed the same subject. The testimony showed that Mrs. Rhodes was a widow, and that her two children were five and ten years of age, respectively. It further showed that the testator had declared to his physician and to another prior to the making of the will that he was working and saving so that his said daughter and her children would have something to live on when he died.

Title 135 of the Revised Statutes, on the subject of wills, provides that any person competent to make a last will and testament under the provisions thereof may dispose of his property by a nuncupative will made under the conditions and limitations therein prescribed. R. S. art. 7860. Among the conditions and limitations therein prescribed are the provisions of article 7863, which reads as follows:

"After six months have elapsed from the time of speaking the pretended testamentary words, no testimony shall be received to prove a nuncupative will, unless the testimony, or the substance thereof, shall have been committed to writing within six days after making the will."

Similar provisions are contained in the chapter of our Revised Statutes providing for the probate of wills. Article 3269 thereof, so far as applicable, reads as follows:

"No nuncupative will shall be proved within 14 days after the death of the testator; nor shall any such will be probated after six months have elapsed from the time of speaking the pretended testamentary words, unless the same, or the substance thereof, shall have been committed to writing within six days after making such will."

These two statutes have existed in their present form for many years. While couched in slightly different language, their meaning is the same. The "testamentary words" referred to in one article constitute the "testimony" referred to in the other. We have found no case holding that the facts required to meet the other conditions and limitations imposed by the statutes must be reduced to writing. Such facts must be proved, and constitute a part of the evidence necessary to be introduced before a nuncupative will can be admitted to probate, but they may be proved by other witnesses, or by the witnesses to the will, regardless of whether they have ever been reduced to writing at any time prior thereto.

A nuncupative will is required to be reduced to writing within six days only in event its probate is delayed longer than six months. At any and all times prior to the expiration of that arbitrary period the will is valid, and, when otherwise properly proved, entitled to probate without any attempt to show that the same had been so reduced to writing. The statute requiring such a will to be reduced to writing when its probate is delayed is general in its terms. It does not require that each of the three witnesses thereto shall reduce it to writing, nor that they shall each direct the same to be done, or participate therein. They are not required by the statute to sign the writing. The obvious...