in Re: The Estate of Nadine Capps

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00151-CV

______________________________

 

 

IN RE: THE ESTATE OF NADINE CAPPS, DECEASED

 

 

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On Appeal from the County Court

Upshur County, Texas

Trial Court No. 6668

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Chief Justice Morriss

O P I N I O N

            The trial court found that, though Nadine Capps' will was gone, her determination had remained that her property be distributed as directed by her will. The court therefore admitted it to probate as a valid holographic will and appointed Devon Roberts as administrator of Capps' estate.

            Urging eleven points of error, Truman Bishop, as temporary administrator of Capps' estate, and Hulene B. Parvar, in her own right, jointly appeal. The first six points of error all spring from the fact the original will was not found: they assert the evidence was insufficient to show either the cause for nonproduction of the original will or that the will had not been revoked. Points seven through ten all relate to the preparation or execution of the will: they assert the evidence is insufficient to show either the will's proper execution or that it was wholly in Capps' hand. Point eleven asserts that, because admitting the will to probate was error, appointing Roberts, rather than Bishop, as personal representative of the estate was also error.

            We affirm the judgment of the trial court because we hold (1) the material evidence was sufficient to overcome the absence of the original will, since the material evidence sufficiently (A) showed the cause of nonproduction and (B) showed the will was not revoked (and rebutted the presumption that it was), (2) the evidence was sufficient to show the will was wholly in Capps' handwriting, and (3) the selection of personal representative was correct.

1. The Material Evidence Was Sufficient To Overcome the Absence of the Original Will

            To probate a will that cannot be produced in court, the proponent must prove the same things required for an attested or a holographic will by Section 84 of the Texas Probate Code, discussed later in this opinion, and must also prove (1) that the will was duly executed, (2) why the original will  was  not  produced  and  that  the  proponent  could  not  produce  it  by  reasonable  diligence, and (3) the contents of the will. Tex. Prob. Code Ann. § 85 (Vernon 2003); Coulson v. Sheppard, 700 S.W.2d 336, 337 (Tex. App.—Corpus Christi 1985, no writ).

            A. There Was Sufficient Evidence of the Cause of Nonproduction

            Bishop's and Parvar's initial contention is that the evidence does not support the court's findings on the cause of nonproduction of the original document. The trial court's findings of fact after a bench trial are reviewable for legal and factual sufficiency by the same standards applied in reviewing the evidence supporting a jury's answer. Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex. App.—Waco 1997, writ denied). When a party challenges the legal sufficiency of the evidence to support a finding favoring the party who had the burden of proof on that finding, we must overrule the challenge if, considering only the evidence and inferences which support the finding in the light most favorable to the finding and disregarding evidence and inferences to the contrary, any probative evidence supports it. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993).

            Two separate photocopies of the document as executed were tendered to the court; and Sue Roberts testified that she had, as Capps had directed, placed those two photocopies in locations where they could be easily found by principal devisees after Capps' death. Sue Adams testified these were photocopies she had made of the document she had notarized. There was testimony that Capps apparently kept the original and that, despite a thorough search of the house, the original had not been located. The evidence showed Capps kept in the house a metal box that typically contained her important records and, though that box was found and searched, the will was not found there, either. The evidence is sufficient to show that the document produced was the will written and signed by Capps and that, despite a diligent search, the original was not found. The will's contents were adequately proven, and the court's findings of fact and conclusions of law on that matter are supported by the evidence.

            B. There Was Sufficient Evidence To Show Nonrevocation and To Rebut the Presumption of Revocation of a Lost Will

            A central question to this case is whether the failure to locate the original, which was last seen in the possession of Capps, requires the conclusion she revoked the will by destroying it. The proponent of the will is required to meet his or her burden of proving the will has not been revoked. See Tex. Prob. Code Ann. § 88(b)(3) (Vernon 2003) (to obtain probate of will, proponent must satisfy court that will was not revoked).

            Bishop and Parvar argue that, because there was no proof that Capps did not revoke the will by destruction, the presumption should stand. True, an original will's absence creates a rebuttable presumption of revocation; but that presumption can be overcome by proof and circumstances contrary to the presumption or that it was fraudulently destroyed by some other person. Bailey v. Bailey, 171 S.W.2d 162, 165 (Tex. Civ. App.—Amarillo 1943, no writ).

            Under the standard sufficiency analysis rule, which applies now in Texas, we look to see whether the evidence was sufficient to "prove to the satisfaction of the court" that the will was not revoked. See Tex. Prob. Code Ann. § 88(b) (Vernon 2003). The testimony of a witness that, to her knowledge or belief, the testator did not revoke the will has been held sufficient evidence of nonrevocation to support probate of the will. See Cason v. Taylor, 51 S.W.3d 397, 407 (Tex. App.—Waco 2001, no pet.); Bryant v. Hamlin, 373 S.W.2d 837, 840 (Tex. Civ. App.—Dallas 1963, writ ref'd n.r.e.). Evidence that a decedent, after execution, recognized the will's continued validity and had continued affection for the chief beneficiary thereunder, without evidence tending to show the decedent's dissatisfaction with the will or any desire to cancel or change the will, has been held sufficient to rebut the presumption of revocation of a missing original will. See Sparkman v. Massey's Estate, 297 S.W.2d 308 (Tex. Civ. App.—Dallas 1956, writ ref'd n.r.e.).

            The record in this case contains no evidence of revocation or destruction of the will. In that respect, the evidence shows nothing more than the fact that, despite a search, the original document was not found. Thus, the presumption of revocation exists and must be overcome by a preponderance of the evidence. Glover, 744 S.W.2d at 940.

            In this case, while there is no direct evidence Capps did not revoke the will, there was sufficient evidence to rebut the presumption of its revocation. Witnesses testified Capps directed that copies of the will, as executed, be placed with major devisees referenced in the will, the church and Sue Roberts; that Capps, at a church business meeting, had publically announced her intentions of leaving her property essentially as set out in the will; that she had also told others, including Jo Nell Ford and Sue Roberts, of her intent to leave her property essentially as set out in the will; that she set up certificates of deposit at the bank consistent with her statements in the will, and those dispositions were carried out, apparently unchanged, after her death; that she continued to have affection for the devisees named in the will with no "falling out"; that she subsequently did not express or intimate any contrary intention regarding her testamentary intent or regarding the disposition of her property; and that she was the type of person who would have informed others had she decided to revoke or change her will.

            Bishop and Parvar contend this evidence is not sufficient to support the court's decision. In their argument, they rely in part on language in Bailey stating that evidence of continued affection of a testator was not of any "material significance" to prove that he did not destroy his will, which had disappeared. See Berry v. Griffin, 531 S.W.2d 394, 397 (Tex. Civ. App—Houston [14th Dist.] 1975, writ ref'd n.r.e.) (evidence of continued affection, standing alone, insufficient and of no material significance, citing Bailey as authority, but also applying the clear and convincing evidence standard). The evidence of Capps' continued affection for the Robertses and her church most certainly did not stand alone, and the standard of proof is now preponderance of the evidence, not clear and convincing evidence. See Glover, 744 S.W.2d at 940.

            Under these facts, there is sufficient material evidence to support the trial court's findings of the reason for nonproduction and that the will had not been revoked. We overrule points of error one through six.

2.  The Evidence Was Sufficient To Show the Will Was Wholly in Capps' Handwriting

            The document at bar is handwritten and is dated July 10, 1996. It purports to devise property, not of one, but of two people, Ola Maye Capps and Nadine Capps. The handwriting is consistent with the signature of Nadine Capps, and the document was signed by both Nadine and Ola Maye and contains an acknowledgment of a notary public.

            Bishop and Parvar attack the probate of the will by asserting, in points of error seven and eight, that it was not properly executed as a witnessed will, and in points nine and ten, that the evidence was not sufficient that the will was wholly in Capps' hand. We address the will, not as a witnessed will, but as a holograph since the trial court found it to be a holograph and we deem that issue dispositive here.

            To show a valid holographic will, the proponent has the burden of proving that the instrument is wholly in the testator's handwriting. Trim v. Daniels, 862 S.W.2d 8, 10 (Tex. App.—Houston [1st Dist.] 1992, writ denied). "If not self proved . . . a will wholly in the handwriting of the testator may be proved by two witnesses to his handwriting, which evidence may be by sworn testimony or affidavit taken in open court." Lopez v. Hansen, 947 S.W.2d 587, 589 (Tex. App.—Houston [1st Dist.] 1997, no writ).

            A testamentary instrument, intended by the testator as holographic, will be enforced as such, although it contains words not in the handwriting of the testator, if such other words are not necessary to complete the instrument and do not affect its meaning. Maul v. Williams, 69 S.W.2d 1107, 1109–110 (Tex. Comm'n App. 1934, holding approved); Watkins v. Boykin, 536 S.W.2d 400 (Tex. Civ. App.—El Paso 1976, writ ref'd n.r.e.); Kramer v. Crout, 279 S.W.2d 932 (Tex. Civ. App.—Waco 1955, writ ref'd n.r.e.). See generally In re Estate of Jansa, 670 S.W.2d 767, 768 (Tex. App.—Amarillo 1984, no writ). For our purposes, the document's material which is in other than Capps' handwriting consists of Ola Maye's signature, the acknowledgment, and the notary public's signature; those are surplusage to a valid holograph.

            In this case, a number of witnesses examined the photocopy of the will in evidence, testified as to their familiarity with Capps' handwriting, and identified the handwriting of the will as hers. Their testimony, in sum, was that all the dispositive portions of the document were written in Capps' hand, and it was signed by her. This is sufficient to support probate as a holographic will, and there is no evidence to the contrary. We overrule points of error seven through ten.

3. The Selection of Personal Representative Is Correct

            In the eleventh and final point of error, Bishop and Parvar allege the court erred by appointing Devon Roberts as the administrator pursuant to the will. Because we have concluded the will was properly probated, this point also fails, because it is based on the assertion that the will was improperly probated.

            We affirm the judgment.

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          November 16, 2004

Date Decided:             December 15, 2004

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-10-00208-CR

                                                ______________________________

 

 

                              ZACHARY WAYNE LAWSON, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

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                                       On Appeal from the Fifth Judicial District Court

                                                              Cass County, Texas

                                                       Trial Court No. 2007F00239

 

                                                                                                  

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

 

            Zachary Wayne Lawson attempts to appeal his convictions for possession of a controlled substance.  Lawson’s sentences were imposed December 4, 2009.  His motion for new trial and notice of appeal were filed October 27, 2010.  We received the clerk’s record November 18, 2010.  The issue before us is whether Lawson timely filed his notice of appeal. We conclude that he did not and dismiss the attempted appeal for want of jurisdiction.

            A timely notice of appeal is necessary to invoke this Court’s jurisdiction.  Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).  Rule 26.2(a) of the Texas Rules of Appellate Procedure prescribes the time period in which a notice of appeal must be filed by a defendant in order to perfect appeal in a criminal case.   A defendant’s notice of appeal is timely if filed within thirty days after the day sentence is imposed or suspended in open court, or within ninety days after sentencing if the defendant timely files a motion for new trial.  Tex. R. App. P. 26.2(a); Olivo, 918 S.W.2d at 522.

 

 

 

 

 

 

 

            Because Lawson’s sentence was imposed December 4, 2009, and both his motion for new trial and notice of appeal were not filed until October 27, 2010, almost a year later, Lawson has failed to perfect his appeal. Accordingly, we dismiss the appeal for want of jurisdiction.

 

 

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

 

Date Submitted:          November 23, 2010

Date Decided:             November 24, 2010

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