Untitled Texas Attorney General Opinion ( 1957 )

. . .
April 15, 1957
Hon. J. 0. Duncan ww-95
District-County 142 Tex. 651, 180 S.W.2d 435 (1944). If we be correct in our
assumption that the 1956 will revoked the 1953 will in the manner
prescribed by the statute, then we can put aside the 1953 will with-
out further notice.
This brings us to the consideration of the subsequent or
the 1956 will which we assume was in writing and executed with the
necessary statutory prerequisites to make it a valid will. We
assume that the 1956 will bequeathed the entire estate, both real and
personal, to the wife without limitation or remainder to anyone. If
this be true, the bequest lapsed upon the death of the wlfe prior to
the death of the husband, the testator. Logan v. Thomason, 146 Tex.
37, 202 S.W.2d 212 (1947). Thea in that event the husband died
intestate and his property would descend according to the law of
descent and distribution as provided in V.A.T.S. Probate Code, 338.
You state in your letter that the testator died “without
issue *. We assume that you mean by this “without children”, Died
‘?without issue” is not the same as saying &died without heirs”.
Only if the testator died without living heirs is his estate subject to
escheat. We are not justified in concluding from your letter that the
testator died without heirs, even though he died without leaving
brothers and sisters or children. The foregoing constitutes the most
satisfactory answer we can give you in the absence of more specific
information.
s UMMARY
A prior will may be revoked only by the
execution of a subsequent will or declara-
tion in writing executed with the same
formalities or by destroying or canceling
the same or causing it to be done in the
presence of the maker. If the sole
beneficiary of an estate under a will,
without any qualification, limitation or
remainder, dies prior to the test&or,
such an estate lapses, resulting in the
testator dying intestate and the estate
Hon. 3. 0. Duncan, page 3 (WW-95)
passes under the law of descent
and distribution as, provided in
V.A.T.S. Probate Code, 838.
Property of a person who dies
intestate, leaving no living heirs
is subject to es&eat. Articles
7272-3289, Vernon’s Civil Statutes.
Very truly yours,
WILL WILSON
Attorney General
Assistant
LPL:cs
APPROVED:
OPINION COMMITTEE
H. Grady Chandler, Chairman
Arthur Sandlin
Richard Stone
B. H. Timmins, Jr.
REVIEWED FOR THE ATTORNEY GENERAL
BY:
Geo. P. Blackburn