Mrs. Fred J. ASHLEY et al., Petitioners, v. Kate Howard USHER, Respondent, 384 S.W.2d 696

GRIFFIN, Justice. The holographic will of Howard S. Cunningham dated August 7,1961, was admitted to probate by the Aransas County Court. On appeal to the district court by contestant, Kate Howard Usher, the jury found that the testator possessed testamentary capacity; that in executing the will he was not acting under undue influence; that he signed the will offered for probate with the intent that the same should be his last will and testament.

The following issue was also submitted and answered: “Do you find from a preponderance of the evidence that Exhibit P-1 (the will in question) had not been revoked by Howard S. Cunningham at the time of his death?” (Issue No. 3). The jury was instructed to answer this issue “yes” or “no” and gave the answer “no.” It is this issue and answer thereto which lie at the root of the problem here. We notice that the issue is cast in the negative form in order to place the burden of proof properly on the proponent.

In our case there were no objections by either party to the submission of Special Issue No. 3, or any request for the submission of additional issues. On motion of the proponents, the trial judge disregarded the jury’s finding to this issue, holding that there was no evidence that the will had been revoked by the testator and accordingly entered judgment that it be admitted to probate as his last will and testament.

The Court of Civil Appeals properly takes the position that according to the finding of the jury, the proponents failed to carry their burden to show that the will offered for probate had not been revoked. That court further being of the opinion that there is evidence to support that jury finding, reversed the trial court and rendered judgment denying the will to probate. Usher v. Gwynn, 375 S.W.2d 564. The issues of testamentary capacity and undue influence are not before us.

The sole question presented here, in view of the jury’s finding, is whether proponents discharged their burden to show as a matter of law that the will offered for probate had not been revoked. The will offered for probate distributes the testator’s property as follows: to St. Peter’s Episcopal Church, 10 shares of corporate stock; to Mary and Fred Ashley, IS shares; to Mr. and Mrs. L. V. McLester, S shares; to Mr. and Mrs. Cloberdant, 5 shares; and the remainder to Mrs. Ruth Lawton Gwynn. The will offered for probate consisted of three pages and was witnessed by Loma Sontag and Edgar Jacobson.

It was contained in an envelope on the back of which was written by the testator, “my will, Howard S. Cunningham.” The testator’s next of kin are Dr. Francis C. Usher and his sister, Miss Kate Howard Usher, niece and nephew. Dr. Usher disclaimed any right, title or interest in the estate in favor of his sister.

Section 88 of the Probate Code, V.C. S. in so far as relevant to this case, provides : “ * * * “(

b) Additional Proof for Probate of Will. To obtain probate of a will, the applicant must also prove to the satisfaction of the court: “ * * * “

(3) That such will was not revoked by the testator.” Thus, the burden of establishing that a will has not been revoked is placed by this statute on the proponent of the will sought to be probated. Brackenridge v. Roberts, 114 Tex. 418, 267 S.W. 244, 270 S.W. 1001 (1925); May v. Brown, 144 Tex. 350, 190 S.W.2d 715(5), 165 A.L.R. 1180 (1945); McElroy v. Phink, 97 Tex. 147, 76 S.W. 753, 77 S.W. 1025 (1903); Crane v. Pierce, 257 S.W.2d 510(2) (Tex.Civ.App., 1953, writ refused).

The rule enumerated in the above cases is that where testator’s will produced in court comes from the custody of those to whom it has been delivered by the testator, or is found among testator’s papers in a place he usually keeps his valuable papers, and there is no suspicion cast upon the genuineness of the will, there exists a presumption that the will has not been revoked. Under such circumstances, a proponent has satisfied the statutory requirement to prove no revocation. Now, let us examine the facts as shown in this record. The witness, Dr. Francis C.

Usher, who-was not a party to this suit, and who was a nephew of the deceased testator, testified that upon hearing of his uncle’s death, he and his wife immediately went to Rockport, Texas, the home of his uncle. Dr. Usher and wife arrived in Rockport November 8, 1961, the day following his uncle’s death. Upon contacting his uncle’s-local physician, and at the direction of this physician, the doctor and his wife went to-the office of an attorney in Rockport, who-had the keys to testator’s apartment, and, so-the Ushers were informed, had testator’swill.

The doctor swore that when he and his-wife reached the attorney’s office and had visited a few minutes, the attorney showed to the doctor and his wife what the attorney said was Howard C. Cunningham’s (the testator) last will and testament; that the will consisted of only two pages, to the best of the doctor’s recollection, and was wholly in the handwriting of testator; that the will shown him was witnessed by a Mrs-Ashley and a Mrs. Gwynn, who were the beneficiaries named in the will; that the will shown him did not have named therein two other beneficiaries whose names appeared in the will offered for probate.

The doctor positively testified that the will offered for probate and which contained three pages was not the will shown him by the attorney on the visit to the attorney’s office November 8, 1961. Mrs. Virginia Usher testified that she accompanied her husband, Dr. Usher, to the-attorney’s office on November 8, 1961; that •only the attorney and she and her husband were in the office when the attorney showed them what the attorney said was the last will of testator Cunningham.

Witness testified that she read and examined this will; that it had only two pages; that it was wholly in the handwriting of Cunningham; that it was witnessed by Mrs. Ashley and Mrs. Gwynn and these two were named as beneficiaries therein; that the beneficiaries McLester and Cloberdant, who were named as beneficiaries in the will offered for probate, were not named in the will shown to witness in the attorney’s office; that the will shown to witness named only Mrs. Gwynn “as executor and administrator” and that Mrs. Ashley was not named as an •executor and administrator.

The will offered for probate named both Mrs. Gwynn and Mrs. Ashley as administratrices; that in the will shown the witness in the attorney’s office, witness distinctly remembers “that Mrs. Gwynn and Mrs. Ashley were both (each) left 15 shares of stock”; that witness was impressed by the fact that the figures “15” designating the shares left to each Mrs. Gwynn and Mrs. Ashley “came right under each other.” The will offered for probate left stock to Mrs. Gwynn and Mrs. Ashley at different figures, as well as leaving stock to others.

Witness positively stated the will shown to her was dated August 7, 1961- — -the date shown on the will offered for probate — but that the will shown her by the attorney was not the will offered for probate. Her testimony in this regard is clear, positive and emphatic and without any qualification. The will offered for probate was dated August 7, 1961, and the will testified to by Dr. and Mrs. Usher as the one exhibited to them by the attorney was also dated August 7, 1961.

In Page: On Wills, Bowe-Parker Revision (1960), Vol. 2, p. 395, § 21.34 it is stated: “If two or more inconsistent wills are shown to exist and it is impossible to show by evidence which of them was executed last, no effect can be given to any of such wills.” Cited as sustaining this proposition are cases from North Carolina, Utah, Virginia and the English case of Phipps v. Anglesey, 7 Brown’s Cas. in Par. 443. This last case is the first recorded authority on this point.

Lord Chief Baron was called upon to answer the following question in the case: “Whether two inconsistent wills of the same date, neither of which can be proved to be the last executed, are or are not void for uncertainty?” He answered as follows: “As to the second question, two inconsistent wills of the same date, neither of which can be proved to be last executed, are by the common law of England void for uncertainty so far as they are inconsistent. * * * ” The evidence set out above demonstrates the inconsistencies between the will offered for probate and the will Dr. and Mrs.

Usher testified was shown them by the attorney as the last will and testament of Howard S. Cunningham. There is. no evidence in the record as to which of the two wills dated August 7, 1961, was executed last. The above evidence raises an issue as to whether or not the will offered for probate was the last will and testament of Howard S. Cunningham, and therefore it became the duty of the proponents of the will offered to show their will had not been revoked. This they did not do, and having failed in this burden, the will offered for probate cannot be probated.

The judgment of the Court of Civil Appeals is affirmed.