A. McElroy et al. v. Silas Phink, Administrator, 97 Tex. 147

GAI2STES, Chief Justice. This proceeding was instituted in the probate court of Grayson County by defendant in error to probate a will of Mariah F. McElroy, deceased, which was alleged to have been lost. The probate was contested by the plaintiffs in error as heirs at law of the deceased. That court admitted the will to probate. The case was appealed to the District Court, where upon a trial de novo the same judgment was entered. Upon appeal to the Court of Civil Appeals the judgment of the District Court was affirmed.

The will was not produced, but there was sufficient evidence introduced by the proponent of the will to establish its execution and contents and that it could not be found. The only question presented in this court as to the correctness of the ruling of the trial court upon those issues is as to the sufficiency of the evidence to show that the will had not been revoked.

The two subscribing witnesses testified to the execution and contents of the will, and one of them also testified, that immediately after the will was executed, which took place some time in the summer of 1900, the testatrix placed it in his custody and asked him to keep it; and that some time thereafter, Sam McElroy, the husband of the testatrix, came to him and said to him, “I came after that will.” The witness was not sure whether he said, “I want it” or “My wife wants it.” He further testified that thereupon he delivered the will to McElroy.

This so far as the testimony shows was the last that was seen of the will. The delivery of the will to McElroy, the husband, seems but a short time before the testatrix went to Fort Worth to undergo an operation and but a short time before her death. Sam McElroy also died before the trial of the case, without his deposition having been taken by either party.

The case was tried before the judge without a jury, and the first error assigned in the Court of Civil Appeals and in this court is to the effect that the trial court erred in holding that there was sufficient evidence to authorize a finding that the will had not been revoked. The authorities are practically in accord upon the proposition that where a will which when last seen was in the custody of the testator can ■not be found after his death a presumption arises that it has been revoked.

The proposition is evidently based upon the theory that it is a reasonable inference from the facts that the custodian, who in such case is the testator, has destroyed it for the purpose of revoking it. On the other hand, there is authority for holding that when at last accounts the will was in the hands of some one other than the testator—and especially in the possession of one to whose interest its provisions are adverse—the presumption of its destruction by the testator does not arise from the mere fact that it can not be produced.

It may be that if the will is shown to have been destroyed, it would not be presumed that it was the act of some one other than the testator, for the reason, as given by the English courts, that it would not be presumed that the custodian had committed a crime. But in this case the testimony traces the will, when last seen, into- the possession of the husband of the testatrix, and it also appears therefrom that by the instrument all her property was devised to, the proponent and that the husband was an heir to her estate. It does not show that the will was destroyed. It is merely shown that it could not be found.

It may be that it has been lost. While it may not be permissible to infer that the husband had destroyed it, there is room for the presumption that he may have lost it. It is no offense against the law to lose an instrument in writing, and therefore it is not necessary to determine, in this case, whether.to destroy the will of another without authority to do so is under our law, where all penal offenses are defined by statute, a criminal act or not.

Therefore we think, that under the evidence adduced in this case, according to the rule generally recognized by the courts, the trial judge was at least authorized to find, as he did find, that the will had not been revoked. But it is argued on behalf of the plaintiffs in error that

article 1904 of our Revised Statutes makes a different rule. That

article reads as follows : “Art. 1904. Before admitting a will to probate it must be proved to the satisfaction of the court— “1. That the testator, at the time of executing the will, was at least twenty-one years of age, or was married, that he was of sound mind, and that he is dead. “2. That the court has jurisdiction of his estate. “3. That citation has been served and returned in the manner and for the length of time required by law. “4. That the testator executed the will with the formalities and solemnities and under the circumstances required by law to make it a valid will. “5. That such will has not been revoked by the testator.” In order to construe the fifth subdivision of the

article let us take the case of a will which has been produced without mutilation or other evidence of an intent to revoke it and the execution of which has been duly proved. Does the statute make it incumbent upon the proponent in such a case to go further and offer additional evidence to prove the negative, namely, that it has not been revoked in any of the methods provided by law? We think not.

The will having been established as having been duly executed by the testator, and having been produced, unattended by any circumstances which cast suspicion upon it, the presumption of the continuity of the status applies and makes a prima facie case as against a revocation.

So when the will can not be produced, but its execution and contents are proved, and it is shown that when last seen it was in the custody of the testator, the presumption being that he has destro)red it with intent to revoke it, the presumption of continuity is rebutted and in the absence of some other evidence the proponent must fail in his case.

But no such presumption of revocation arising from the.failure to produce the will when it has been traced to the hands of another than the testator and can not be found, the first presumption should prevail and the evidence should be held sufficient at least to warrant a finding that the will had not been revoked. • We think the Court of Civil Appeals were correct in overruling the first assignment of error. During the progress of the trial the contestant offered to prove by F. C. Vaden, “that on the day before Mrs.

McElroy left Sherman to go to Fort Worth to have an operation performed, he had a conversation with her in which she told him that she had sent and gotten her will and that she had destroyed it, that she had burnt it up, and that she had decided not to leave her property to Silas Phink; that she was dissatisfied with the way he had treated her and with the way he was conducting himself. That she told him that Silas Phink had run through with all the property which he had gotten from the Yaden estate, and if she and her husband were to leave him their property he would run through with it the same way.

That this conversation occurred with Mrs. McElroy while she was sick at Silas Phinlds house on the day before she left to go to Fort Worth.” Counsel for the proponent objected to the testimony on the ground, “that it was irrelevant, immaterial, hearsay and self-serving.” The objection was sustained by the court and exception duly taken by the contestants. The ruling of the court was assigned as error in the Court of Civil Appeals and is also assigned in this court. This presents the most difficult question in the case.

After an examination of the authorities bearing upon this question, we are impressed with the truth of the following remarks found in the opinion of the court in the case of Tucker v. Whitehead, 59 Miss., 594: “There are few questions in the law upon which authorities are more hopelessiy in conflict than upon the admissibility of the declarations of a deceased testator in support or in rebuttal of a supposed revocation of a testamentary paper. It has engaged the attention and elicited the logic of the greatest jurists who have adorned the bench of this or any country.

Against the admissibility of such evidence are to be found the names of Kent and Story and Livingston, and in favor of it those of Walworth and Ruffin and Lumlrin and Cooley. Certainly we can hope to add nothing to the strength of an argument, on either side, which has already been exhausted by such men as these.” It seems, however, to be universally held, that the declarations of a testator are admissible in evidence upon the issue of his insanity.

Since, however, the words and conversation of a party indicative of mental aberration are always admissible upon the question of the soundness of his mind, when that question is in issue, it does not follow for that reason that they are admissible for any other purpose. They in such cases tend merely to show the mental capacity of the testator and are by all the courts held admissible for that purpose.

But beyond this, there is not only a contrariety but also a great variety of opinions—some authorities holding that declarations of the testator are not admissible upon any other issue—while others hold that they are admisible upon some and not upon others. This is illustrated by the decisions of our own courts to which we shall hereinafter refer. By reason of the hopeless confusion in the decided cases upon the question, it would be a profitless task to review them in this opinion. They are ably discussed in the case of Collagan v. Burns, 59 Me., 449, and in that of Throckmorton v. Holt, 180 U. S., 552.

In the former the court, consisting of eight judges, were equally divided, which under the statute of the State resulted in an affirmance of the ruling of the trial judge, who held that in that case the testator’s declarations made while pasting the parts of a torn will together and while reading it after it was so put together, to the effect that it had been torn by his mother, and also his declarations of good will and affection for his wife, the principal legatee, were admissible upon the question of revocation. In Throckmorton v.

Holt, in the trial court the declarations of the alleged testator were admitted upon the issue of forgery. This was held error by five of the justices of the Supreme Court. Three dissented from the conclusion upon that point, and another (Mr. Justice Brown) announced merely his concurrence in the result. There was another error which called for a reversal of the judgment as held by the majority, so that we are left in doubt whether Judge Brown concurred with the majority or the minority upon the question of the admissibility of the declarations.

The question has never, so far as we are aware, been decided in the Ho’use of Lords in England. But in the case of Sugden v. Lord St. Leonards (Law Rep., 1 Prob. Div., 154) the Court of Appeal held that the declarations of the testator made either before or after the execution of a will were admissible to prove its contents, the will being lost. One of the four judges dissented as to the proposition that declarations subsequent to the execution were competent. But in the subsequent case in the House of Lords of Woodward v.

Goulstone (Law Rep., 11 App„ Gas., 469) each of the three law lords who delivered opinions in the case expressly declined to pass upon the ruling in Sugden v. St. Leonards, that question not being directly involved in that case. But as we have previously intimated, we are not without authority in our own court. In Tynan v. Paschal, 27 Texas, 286, which was the case of an alleged will which had been lost, the court say: “The statute requires two witnesses to the handwriting of the subscribing witnesses.

Here there was but one witness to the handwriting of one subscribing witness; and although the declarations of the supposed testator were properly received to rebut the presumption of a cancellation, or revocation, of the will, which arises from its loss or destruction previous to his death, and they might also be regarded by the jury as tending, in some degree, to strengthen the other proof as to the execution of the will, yet they were not, of themselves, sufficient proof of it, or even to fully supply the deficiencies in the other proof.” But it is urged, that the remarks concerning the admissibility of the testimony as to the declarations of the testator in that case are mere dicta and therefore not authority.

It is true, that, so far as we can gather from the opinion and the briefs, the evidence was admitted without objection. But the court charged the jury that the alleged testator’s “statements * * * were not legal evidence of the execution of the will; but were admissible as tending to corroborate the evidence of its execution and to destroy the presumption of its cancellation;” and from the brief of counsel for appellant, the charge seems to have been assigned as error.

At all events, the judgment was reversed and the cause remanded for a new trial; which implies that the cause was to be again tried in accordance with the views expressed in the opinion of the appellate court. The court which decided that case consisted of Chief Justice Roberts and Associate Justices Bell and Moore; and it is not believed that that able court announced their conclusion upon that question without careful consideration.

If deelarations which tend to prove that a will has not been revoked are competent evidence, it seems to us that declarations which tend to show its revocation are also admissible for the same reason. In Johnson v. Brown, 51 Texas, 65, in which the will was contested on the ground that it was a forgery, testimony on behalf of the contestants of declarations of the alleged testator showing hostility on his part towards the legatees in the will was admitted, and it was held that the court did not err in admitting it. On the other hand, in Kennedy v.

Upshaw, 64 Texas, 411, it was held, on a contest as to a codicil alleged to be forged, that the declarations of the testator made after the date of the alleged codicil, to the effect that he had not changed his will, were not admissible. It is to be observed that although the opinion of Judge Stayton in that case shows great research, it makes no allusion to either the case of Johnson v. Brown, supra, in the decision of which he participated and concurred, or to that of Tynan v. Paschal, above cited. It is evidence that the court did not intend to overrule the previous decision in either case.

When the declarations of an alleged testator consist in effect of the naked assertion that he has made a will, or that he has revoked one that is proved to have been executed, they are generally excluded; and we think such action is proper for the reason that such declarations are merely statements of a legal conclusion and not a statement of the facts from which that conclusion should be deduced.

But where a will duly executed can not be produced, and its last custodian has been some person other than the testator, his declarations that he had destroyed the will for the purpose of revoking it stand upon a different ground. Two reasons are urged against the admissibility of such testimony: first, that it consists of mere declarations of one not a party to the suit and is therefore hearsay; and the second is that it opens a door to fraud and forgery.

As to the latter, it is sufficient to say that we deem it of very little weight because, as "we think, the same may be said of much other parol testimony the admission of which is never questioned. As to the first ground, the general rule is that the declarations of third parties are not competent evidence. But conceding, for the sake of the argument, that the declarations of a testator are properly classed as declarations of a third party, the question presents itself, whether they ought not to be considered as standing upon a different basis and to be treated as an exception.

Exceptions are made in other cases as to the declarations of deceased persons. For example, declarations as to pedigree and declarations made in the usual course of business by persons who have since died are admitted. The position of the testator is very different from that of an ordinary third person whose declarations may be offered in support of an issue upon the trial of a ease. Both the proponent of the will and the contestant claim under him. As a very general rule he best knows the facts about which he makes the statement. His will is ambulatory and subject to be changed or revoked.

Ho one has any right under it until his death. He has a right to make such disposition of his property as he may wish, and as a rule he has no interest to induce him to make a false statement about the matter. The testimony which was offered and rejected in this-case and which we are now considering strikingly illustrates the views we have just expressed- It tended to show, that what McElroy said to Hanna, when he went for the will, was “My wife wants it;” and that the testatrix had changed her mind and had got the will into her possession, and had destroyed jt for the purpose of revoking it.

We are of the opinion that the introduction of such testimony is not forbidden by sound policy and that it violates no rule of law. We conclude that the court erred in excluding the evidence. It follows, we think, that the trial court also erred in. excluding testimony offered to prove that shortly before her death the testatrix complained of the treatment of the proponent and his wife towards her. We also think, however, that the testimony of Mrs. Wilkins as to statements made by the testatrix seven or eight years before her death were properly excluded.

We are of the same opinion as to the rejected testimony of Jennings, a witness for contestants. Neither do we think .there was error in excluding the testimony of F. C. Vaden as to remarks to him by Sam McElroy—presumably when he was going to Hanna’s home for the will. This was clearly hearsay. The same may be said as to the testimony of Mrs. Jennie McElroy (who after the death of the testatrix intermarried with Sam McElroy) as to the latter’s declarations to her. Nor do we think the court erred in refusing to admit evidence to show that during a portion of the time Mrs.

McElroy, the testatrix, was sick at proponent’s house he had access to her papers. The materiality of this testimony is not apparent to us. We are also of the opinion that the trial court Correctly excluded the testimony of J. D. Woods and others as to the character of Sam McElroy for honesty and integrity. In Redus v. Burnett, 59 Texas, 576, the question was decided adversely to the contention of appellants. For the errors pointed out, the judgment is reversed and the cause remanded. Reversed and remanded/. on motion for rehearing.

In the opinion in this case it is erroneously stated that Judge Stayton participated and concurred in the decision of the case of Johnson v. Brown, 51 Texas, 65. That was an error, as has been pointed out in the argument upon this motion, and we take occasion to correct it. He was not a member of the court when that case was decided. In Kennedy v. Upshaw, 64 Texas, 411, Judge Stayton did cite Johnson v. Brown, but did not discuss it. But we still think our conclusions as expressed in the opinion in this case correct, and therefore the motion for a rehearing is overruled. Overruled.

Opinion delivered January 14, 1904.