This is an appeal from a judgment of the probate court of Harris County, denying and dismissing an application for probate of either of two alleged wills of Howard Ro-bard Hughes, Jr. The application was filed by the Howard Hughes Medical Institute (hereafter HHMI or appellant) as the principal beneficiary of a lost will supposedly executed sometime between 1953 and 1963 or as the intended beneficiary or beneficiary under the cy pres doctrine of a lost will allegedly dated and executed on May 30,1925. The State of Texas and the court-appointed attorney ad litem for unknown heirs, appellees herein and contestants in the court below, moved for a hearing in limine to require that HHMI prove its standing as a party interested in the Hughes estate. Contestant Neff, the executor of an aunt of Hughes, filed a motion for summary judgment. Contestants McIntyre and Bond, a cousin of Hughes and the executor of the estate of a cousin of Hughes, respectively, also filed a joint motion for summary judgment. Since the questions of the existence and validity of any will and HHMI’s position to benefit therefrom relate to the standing issue, the parties agreed to conduct the evidentiary hearing on standing and the hearing on the motions for summary judgment together. This hearing was conducted on December 2, 1980. On February 27,1981, the trial court signed a judgment ordering that contestants are entitled to judgment as a matter of law, and denying and dismissing HHMI’s application for probate. The question for this Court is whether the record on appeal will sustain the judgment dismissing the application for probate on the basis of any of the issues raised below by the motions for summary judgment or by the in limine evidentiary hearing on the standing question. We find that the record will sustain the judgment and accordingly affirm.
Howard Robard Hughes, Jr. died on April 5, 1976. Since his death, much time and money has been spent in conducting searches to determine whether Hughes left a will. Shortly after his death, a Superior court in California ordered a will search therе discontinued. Two years later, that
THE ALLEGED LOST WILLS
Appellant relies on the following facts to establish its claim under a will allegedly executed sometime between 1953 and 1963, or in the alternative, a will allegedly executed on May 30, 1925: In a letter to Hughes dated January 31, 1929, Frank Andrews, Hughes' lawyer, referred to a copy of the “will you executed ... [oh] May 30, 1925.” That letter also states, “Except as to dates and witnesses, this is an exact copy of the will you executed.” An unsigned file copy of a will bearing the handwritten date “May 30, 1925” was found in Frank Andrews’ files. The copy provided for the disposition of the bulk of Hughes’ estate to a medical research institute (the Howard Hughes Medical Research Laboratories) to be formed after his death. Appellant submits that the execution of this 1925 will was further confirmed by the discovery of an original holographic codicil in Hughes’ handwriting, dated June 10, 1939, direсting the deletion from the will of the name R.C. Kuldell, a name appearing in the copy found in Andrews’ files. In a letter to Hughes dated April 23, 1929, Mr. Andrews wrote, “I do not wish to seem critical of the testamentary revision referred to by Mr. Dempsey. In lieu of the suggestions made by him it occurs to me that everything would be very much simplified by creating at once the trust you desired to carry out.” Appellant surmises that “heeding such advice,” Hughes created HHMI twenty-four years later in 1953, and that in a will allegedly executed sometime between 1953 and 1963, Hughes left HHMI the bulk of his estate. For this contention, appellant relies on the deposition testimony of a former Hughes executive. This executive, John T. Pettit, testifies that in 1963, Mr. Raymond Cook, a partner in the Andrews, Kurth law firm showed him a document which Mr. Cook identified as Hughes’ will. Mr. Pettit testified that to the best of his recollection, he was shown a very thin document. Upon “glancing” at the document, Mr. Pettit’s
a. Due Execution
Following appellant’s statement of its only point of error complaining of the probate court’s granting of a summary judgment, appellant states that “Texas law clearly permits the use of secondary evidence of due execution when, despite diligent inquiry, the identity of the attesting witnesses cannot be discovered.” It argues that Probate Code § 84 is a permissive “best evidence” rule that permits the use of secondary evidence so long as the absence of preferred evidence is “accounted for.” HHMI reasons that because Probate Code § 88(b) provides the substantive requirement that the applicant prove due execution of a will “to the satisfaction of the court,” “[Sjections 84 and 85 of the Probate Code are procеdural rules as to methods of satisfying Section 88’s substantive requirement. ...”
Section 88 of the Probate Code provides first for “General Proof” required whenever an applicant seeks to probate a will. This requirement includes such items as proving that the person is dead, that four years have not elapsed since his demise and that the court has jurisdiction and venue over the estate. Pursuant to Probate Code § 88(a) the applicant must first prove these items “to the satisfaction of the court.” Part (b) of § 88 thereafter provides as follows:
(b) Additional Proof for Probate of Will. To obtain probate of a will, the applicant must also prove tо the satisfaction of the court:
(1) If the will is not self-proved as provided by this Code, that the testator, at the time of executing the will, was at least eighteen years of age, or was or had been lawfully married, or was a member of the armed forces of the United States, and was of sound mind; and
(2) If the will is not self-proved as provided by this Code, that the testator executed the will with the formalities and solemnities and under the circumstances required by law to make it a valid will; and
(3) That such will was not revoked by the testator.
The words “to the satisfaction of the court” thus do not provide the exclusive requirement of proof for the probate of a will. What must be proved “to the satisfaction of the court” is the specific requirement that the testator executed the will “with the formalities and solemnities and under the circumstances required by law to make it a valid will.” The manner of proving execution with the formalities and solemnities required to make it a valid will is set out in Probate Code § 84 for a will produced in court and in Probate Code § 85 for a will not produced in court. 2
In Page, the proponent prоved that one of the witnesses to the will was dead and the other “could not be located.” The contestant argued that since the proponent failed to prove that the one who could not be located was dead or in the armed forces, proper execution of the wills was not shown. The court held that the requirements of Probate Code § 84 are not mandatory. However, the court continued:
... before any secondary evidence of the proper formalities of a Will may be offered, the Proponent must first account for the witnesses and offer some reason for their failure to appear and offer primary evidence of the validity of the Will.
The court stated that since it was conclusively established that one witness was dead and the other could not be located, “[I]t was therefore permissible for the Proponent to proceed with secondary evidence as to the validity of the Will.” In Page, the evidence offered was the testimony of two witnesses who testified to the genuineness of the signatures of the testator and the other witness. This is precisely the kind of secondary evidence that Probate Code § 84(b)(3) requires. Consequently, Page is distinguishable. In the instant case, the secondary evidence on which appellant relies is not of the kind contemplated in Probate Code § 84(b)(3).
To prove due execution of the alleged 1925 will, appellant relies on a statement in the January 31, 1929 letter by Frank Andrews wherein Mr. Andrews refers to a copy of the “will ... executed ... [on] May 30, 1925.” Assuming that this evidence could be considered probative in proving due execution of a will, the statement is inadmissible as hearsay because it is an out-of-court statement offered to prove the truth of the matter asserted.
See Hartford Accident & Indemnity Company v. McCardell,
Appellant’s only evidence relevant to this issue is the deposition testimony of Ms. Kate Ebdon, Frank Andrews’ long-time secretary. Appellant, referring to Ms. Ebdon’s testimony, states that “it was Andrews’ practice not to retain drafts of wills or the originals of wills, but only to retain copies of executed wills of his clients.” Ms. Ebdon actually testified that in those instances where
she typed
a will for Andrews, a carbon copy was placed in the client’s personal file. Where changes were made and a draft of a will was retyped, she did not reсall whether she took it out of the file and replaced it with the copy of the newly typed original. Ms. Ebdon further testified that she only typed five or six wills during her tenure with Andrews and that she never typed a will for Hughes. To the best of her recollection, Ms. Ebdon did not type the copy of the alleged 1925 will because the copy of that alleged will shows a different “typing set up” and wording from those of the wills she typed. To infer from Andrews’ conclusion that “the will ... executed” was executed with all the formalities of law would inject speculation and conjecture into an otherwise solemn procedure much protected in law. As the Texas Supreme Court has said, “... а vital fact may not be established by piling inference upon inference.”
Schlumberger Well Surveying Corp. v. Nortex Oil and Gas Corp.,
For proof of due execution of the alleged 1953-1963 will, HHMI relies on the oral testimony of an out-of-court declaration of Raymond Cook, now deceased, that Hughes “executed” his will. This statement would likewise be inadmissible as hearsay. See Hartford Accident Indemnity Co. v. McCormick, supra. The record further does not contain any evidence that this document was subscribed by two credible witnesses over the age of fourteen in Hughes’ presence. We find this evidence insufficient to raise a fact issue to preclude summary judgment on the issue of due execution of the alleged 1953-1963 will.
Appellant contends further that since a diligent search has been made to determine the identity and whereabouts of the subscribing witnesses, the witnesses have been “accounted for.” It cites numerous decisions which have permitted various forms of secondary evidence where testimony of attesting witnessеs could not be obtained. In
Massey
v.
Allen,
Still, appellаnt has not cited to this Court any case or authority where secondary evidence of due execution was permitted on a showing that, because a diligent search to determine the identity of the attesting witnesses was made, their failure to testify has been “accounted for.” In fact, in two cases cited by appellant for the proposition that the testimony is required only “if the production of such witnesses is possible,” probate of the wills was denied because the witnesses’ failure to testify was unexplained or the witnesses were otherwise considered “unaccounted for.”
See In re Estate of Simms,
In
Stewart v. Long,
We agree with appellant-proponent that the record in this case is entirely devoid of any evidence (1) as to the age of the alleged attesting witnesses; (2) whether they were credible witnesses within the meaning of the Probate Code; and (3) whether they executed the same in the presence of the testatrix, and at her request.
We agree with the above decision and hold likewise in the instant case.
Appellant asserts two final reasons why the' probate court еrred in ruling as a matter of law that the alleged 1925 will was not executed with the formalities and solemnities of law. First, HHMI claims that appellee Neff has twice admitted in open court that the 1925 will copy is a copy of the will Hughes executed leaving his estate to the Howard Hughes Medical Research Laboratories. The alleged judicial admission was made by an attorney of Neff in an unrelated proceeding in Nevada. In the recent case of
Thomas v. St. Joseph Hospital,
A judicial admission is a deliberate, clear, and unequivocal formal act made by a party, which if true and not modified or exрlained by him, would defeat his right of recovery or defense; the principle should be applied with caution. Esteve Cotton Co. v. Hancock,539 S.W.2d 145 , 157 (Tex.Civ.App.1976, writ ref’d n.r.e.); see also Griffin v. Superior Insurance Co.,161 Tex. 195 ,338 S.W.2d 415 , 418-19 (1960). Statements made by a party or his attorney in the course of judicial proceedings which are not based on personal knowledge or are made by mistake or based upon a mistaken belief of the facts are not considered judicial admissions. Gevinson v. Manhattan Construction Co. of Oklahoma,449 S.W.2d 458 , 460 (Tex.1969).
Second, appellant contends that the attesting witnesses to the 1925 will have been accounted for because, “after thirty years, they are presumed dead.” For this proposition, HHMI cites the case of
Harris v. Hoskins, 2
Tex.Civ.App. 486,
In this case, appellant is faced with two obstacles it must overcome. First, because the identity of the attesting witnesses is unknown, the proponent has a very difficult burden to meet in proving due execution. Second, because the alleged wills are lost, the question of the manner of proof of due execution is controlled not by a permissive § 84 “best evidence” rule as urged by appellant but by Probate Code § 85. That section, as enacted in 1956, unlike its predecessor and Probate Code § 84, provides that a written will which cannot be produced in court
“shall be proved
in the same manner as provided in the preceding Section .... ” (emphasis supplied) The Court of Appeals in
In re Estate of Simms,
Probate Code § 84(b)(3) deals specifically with the matter of diligent searches. The statute provides in part:
... or, if it be shown under oath to the satisfaction of the court that, diligent search having been made, only one witness can be found who can make the required proof, then by the sworn testimony or affidavit of such one taken in open court, ... to such signatures or handwriting.
The record does not contain any evidence that appellant has located any person who can testify to either the signature or handwriting of the testator or the signature or handwriting of either of the two attesting witnesses. Therefore, we find that the trial court did not err in holding as a matter of law that no fact issue existed regarding due execution of either of the two alleged wills.
Mossler v. Johnson,
b. Contents by Live Witness
Probate Code § 85 provides that the contents of a lost will “be substantially
To prove the contents of the alleged 1953-1963 will, appellant relies on the deposition testimony of John Pettit. The witness testified that upon “glancing” at the document which Mr. Cook identified as Hughes’ will, the witness’ “impression” was that everything was left to HHMI. It is clear that Mr. Pettit did not read a will or have it read to him. In fact, Mr. Pettit did not testify that what he saw was the actual will as opposed to a photocopy or a carbon copy. It is unclear whether he remembers seeing Hughes’ signature on the document and he cannot remember whether it was signed by any attesting witnesses. This testimony falls short of the requirement in Probate Code § 85 for “substantial” proof of the contents of a lost will. See Harris v. Robbins, supra. Accordingly, the trial court correctly found that no genuine issue of material fаct exists as to the contents of the 1953-1963 will.
Appellant states that as to the alleged 1925 will, there is “abundant evidence” that the copy of the will found in Frank Andrews’ files is a copy of the will Hughes allegedly executed in 1925. HHMI argues, citing
Miller v. Miller,
In Miller, the Court of Appeals in East-land held that carbon copies of two alleged lost wills should have been admitted into evidence so as to bear upon the contents and due execution of the wills. However, in Miller, both attesting witnesses to the wills testified to witnessing the will and other persons testified that the copies were exact copies of the originals.
In
In re Moramarco’s Estate,
a subscribing witness identified an instrument as an exact copy of a will that otherwise had been executed and attested. The Court merely said that, under the California statute, the contents of the will had been proved by that witness by her testimony that the copy was in fact a copy оf the original she had witnessed. The Texas statute differs. It specifically requires proof that the witness read the will or heard it read. Moreover, the California Court of Appeals has questioned the decision. In
In Re Ruben’s Estate,
“... we have considerable doubt that the holding in Moramarco can be reconciled with the clear mandate of the statute. ...”
Assuming,
arguendo,
that a true copy would be sufficient to prove contents, proof of due execution is still required.
See Sparkman v. Massey’s Estate,
Appellant would still assert, however, that even if the above determination were not found to be sufficient, Andrews’ statements in the January and April, 1929
STANDING/CY PRES
Texas Probate Code § 76 provides that an executor named in a will or any interested person may make application to probate a will. An interested person is an entity with some “legally ascertained pecuniary interest, real or prospective, absolute or contingent, which will be impaired or benefited, or in some manner materially affected, by the probate of a will.”
Logan v. Thomason,
The record in the instant case establishes that there is no genuine issue of material fact regarding due execution of either of the alleged wills. Furthermore, appellant has no standing to probate the alleged 1925 will since the devise in that will specifically provides for the creation of a corpоration in Harris County, Texas to conduct “a LABORATORY devoted to the discovery and development of ways, means, antitoxins, and specifics for the prevention and curing of the most serious diseases with which [this section] of this country may from time to time be afflicted, and shall be devoted to the search for and development of the highest scientific methods for the prevention and treatment of diseases.” Because HHMI is a Florida charitable trust with different purposes, programs and trustees, appellant can claim no “interest” within the meaning of Probate Code § 76 under the provisions of the alleged 1925 will.
Further, HHMI contends that if the alleged 1953-1963 will is not established, it is the intended or cy pres beneficiary of the alleged 1925 will. Appellant would urge that it has a special interest in the performance of the trust different from that of the general public so as to establish its standing to proceed. This interest is based on HHMI’s belief that it can best carry out Hughes’ alleged charitable intent. Appellant cites no authority nor does it argue its case under this legal theory. We find appellant’s contention is without merit.
The Texas Supreme Court has held that only the trustee of a charitable trust or the Attorney General may initiate a
cy pres
action.
Coffee
v.
William Marsh Rice University,
The application of the
cy pres
doctrine is limited to situations where a testator’s specific charitable purpose or thе specific manner of disposition, “becomes impossible or impracticable or illegal to carry out .... ”
Moody v. Haas,
We likewise find that appellant does not have a special interest in the trust
FULL FAITH and CREDIT
It is asserted by appellees Neff, McIntyre and Bond that because HHMI litigated the identical issues now before this Court in the Nevada courts, the Nevada court’s judgment denying the alleged lost wills to probate should be given full faith and credit by the courts of this State. The pivotal question surrounding the effect of a judgment denying or admitting a will to probate concerns the domicile of the deceased.
See 1generally:
Probate Code §§ 95, 100 (a) & (b), 102, 103;
Jones v. Jones,
Appellant’s sole point of error is overruled and the judgment of the trial court is affirmed.
Notes
. All references to Texas Probate Code will hereafter be cited “Probate Code § 73,” etc.
. Probate Code § 84(b) provides as follows:
(b) Attested Written Will. If not self-proved as provided in this Code, an attested written will produced in court may be proved:
(1) By the sworn testimony or affidavit of one or more of the subscribing witnesses thereto, taken in open court.
(2) If all the witnesses are non-residents of the county, or those who are residents are unable to attend court, by the sworn testimony of any one or more of them by deposition, either written or oral, taken in the same manner and under the same rules as depositions taken in other civil actions; or, if no opposition in writing to such will is filed on or before the date set for hearing thereon, then by the sworn testimony or affidavit of two witnesses taken in open court, or by deposition in the manner provided herein, to the signature or the handwriting evidenced thereby of one or more of the attesting witnesses, or of the testator, if he signed the will; or if it be shown under oath to the satisfaction of the court that, diligent search having been made, only one witness can be found who can make the required proof, then by the sworn testimony or affidavit of such one taken in open court, or by deposition in themanner provided herein, to such signatures or handwriting.
(3) If none of the witnesses is living, or if all of such witnesses are members of the armed forces of the United States of America or of any auxiliary thereof, or of the armed forces reserve of the United States of America or of any auxiliary thereof, or of the Maritime Service, and are beyond the jurisdiction of the court, by two witnesses to the handwriting of one or both of the subscribing witnesses thereto, or of the testator, if signed by him, and such proof may be either by sworn testimony or affidavit taken in open court, or by deposition, either written or oral, taken in the same manner and under the same rules as depositions taken in other civil actions; or if it be shown under oath to the satisfaction of the court that, diligent search having been made, only one witness can be found who can make the required proof, then by the sworn testimony or affidavit of such one taken in open court, or by deposition in the manner provided herein, to such signatures or handwriting.
Probate Code § 85 provides as follows;
§ 85. Proof of Written Will Not Produced in Court
A written will which cannot be produced in court shall be proved in the same manner as provided in the preceding Section for an attested written will or an holographic will, as the case may be, and the same amount and character of testimony shall be required to prove such will as is required to prove a written will produced in court; but, in addition thereto, the cause of its non-production must be proved, and such cause must be sufficient to satisfy the court that it cannot by any reasonable diligence be produced, and the contents of such will must be substantially proved by the testimony of a credible witness who has read it or heard it read.