Williams v. White, 1892.

• Decision Date: 20 May 1937
• Docket Number: No. 1892.,1892.
• Citation: 105 S.W.2d 1105
• Parties: WILLIAMS v. WHITE.
• Court: Texas Court of Appeals

105 S.W.2d 1105

WILLIAMS v. WHITE.

No. 1892.

Court of Civil Appeals of Texas. Waco.

May 20, 1937.

Appeal from District Court, Ellis County; Tom J. Ball, Judge.

Application by Richard Williams for the probate of the will of Mrs. Millie White, deceased. From a decree in favor of the contestant, T. W. White, the proponent appeals.

Affirmed.

J. C. Lumpkins and J. T. Spencer, both of Waxahachie, for appellant.

A. D. Emerson, of Waxahachie, for appellee.

ALEXANDER, Justice.

On April 22, 1935, Mrs. Millie White executed a written will in which she bequeathed all of her property to her brother, Richard Williams. On April 27th of the same year, she executed another will in which she bequeathed her property to her husband, T. W. White. On May 8, 1935, Richard Williams filed in the probate court an application to probate the will of date April 22d, and citation was duly issued thereon, citing all interested parties to appear at the next term of court to be held on the 20th day of May, 1935. Some time thereafter, T. W. White filed a contest in which it was alleged that the testatrix, by the execution of the will of date April 27th, revoked all prior wills, and he specially prayed that this latter will be admitted to probate as the last will and testament of the testatrix. However, no citation was issued on the application to probate this last will. The probate court found that the testatrix was not possessed of testamentary capacity and refused to probate either of said wills. Upon appeal to the district court, the jury found that the testatrix was of sound mind on April 22d and also on April 27th. On this verdict, the court refused to probate the will of date April 22d, because it was revoked by the subsequent will, and refused to probate the will of April 27th, because no citation had been issued on the application to probate that will, and therefore the court did not have jurisdiction to probate same. Richard Williams, the proponent of the first will, alone appealed.

Appellant here contends that the verdict of the jury was insufficient to authorize the court to hold that the purported will of April 27th revoked the will of April 22d, because there was no finding that the latter will was executed with the formalities required for the execution of a valid will. We do not think a finding on such issue was necessary to the judgment. Under our statutes, a prior will is revoked "by a subsequent will, codicil or declaration, in writing, executed with like formalities." R.S. art. 8285. The purported will of April 27th contained a provision expressly revoking all prior wills and was otherwise inconsistent with the prior will. If it was executed with the formalities of a will, it revoked the prior will. 44 Tex.Jur. 643. It was in writing and appeared on its face to have been executed by the testatrix by her mark and to have been attested by two witnesses. The evidence was undisputed that it had been executed in the manner and with the formalities required by R.S. art. 8283 for the execution of an original will. But even if the evidence was not sufficient to conclusively establish such facts, it was at least sufficient to raise an issue for the jury. The burden of proof was on the proponent, appellant herein, to prove that the will offered by him for probate had not been revoked. 44 Tex.Jur. 636; R.S. art. 3348; Brackenridge v. Roberts, 114 Tex. 418, 436, 267 S.W. 244, 270 S.W....