Wich v. Fleming

WICH, al., Petitioners, v. Joan Hohlt et FLEMING,

Marian W. Executrix Giddings Wilkin,

Estate Mabel

Deceased, Respondents.

No. C-1334.

Supreme Court of Texas.

April 1983.

Rehearing Denied June 1983.

Rehearing July Denied

354 executing self-prov- The witness

witness. swearing validity ing affidavit already performed. an act In the Boren, instance, self-proving as in affi- the witnesses’ “names are sub- davit states in- foregoing scribed to the annexed [and] and that “each witness stat- strument ...” sign the same they ed further did ” witnesses.... The witnesses in fact had previously signed as witnesses. Jaworski, Lange, M. Fulbright & Fred Therefore, presently neither the intent Townsend, Sleeth, Joseph Jr. and Roger C. pre- the intent to substantiate a attest nor Houston, Talmadge, petition- D. for Jeffrey accomplished. vious attestation was ers. provi The functions of the two Allen, Cook, Hooper, Pannill & Reynolds, Proper attestation vary sions as well. Pannill, Pierce and Ann Kay William K. witnesses validates an other qualified two Robertson, Houston, Ryan respondents. for will; the only pur wise executed affidavit is to elimi self-proving of the pose CAMPBELL, Justice. testimony for the of the necessity nate the appeal summary judg- This is an from a when the will is of subscribing witnesses probate purported ment of the denying As we stated probate. fered for The court of Giddings Dr. Mabel Wilkin. purpose Legislature not the “it was judgment of the trial appeals reversed the enacting this alternative means of [when 638 court and remanded the cause. S.W.2d repeal the re to amend proving will] rehearing, we reverse On the will must meet the re quirement of the court of law.” Id. at 729. A quirements of the judgment. affirm the trial court’s prece will is a condition properly executed her will at a bank Dr. Wilkin executed a self-proving usefulness of dent Brenham, 1979 be- Texas on December preexisting, Without a valid affidavit. employee fore her and an attorney is ineffective for bank. her name on the last She fol The Boren rule has been any purpose. did not page of the will. The witnesses E.g., Jones v. consistently. lowed sign signature, below her immediately (Tex.Civ.App. 645 630 S.W.2d - Dallas instead at the conclusion of the self- Hospital Crippled ref’d); writ Shriners proving affidavit located at the bottom of Research Jude Children’s Children St. page. the same The witnesses testified con- Inc., (Tex.Civ.App. 767 629 Hospital, S.W.2d cerning depositions these facts in which ref’d); In re Estate -Dallas writ court, parties filed with the and all were (Tex.Civ.App.- McDougal, S.W.2d Wilkin and the two witness- agree that Dr. n.r.e.); McLeroy v. writ ref’d Tyler executing were es believed (Tex.Civ.App.- Douthit, 535 S.W.2d validly. curiam, per Worth), ref’d n.r.e. Fort writ Reed, Cherry v. Boren, 402 In Boren v. (Tex.Civ.App. [1st —Houston held that a will was not (Tex.1966), we n.r.e.); In re Estate writ ref’d Dist.] if the witnesses had probate admissible to Pettengill, affidavit at signed only n.r.e.). ref’d —Amarillo premise of this tached to the will. executrix, attempts Fleming, the self-prov and the holding was that the will rule on sev of the Boren of in avoid require types different ing affidavit rule should argues the grounds. She the witness and serve eral tent on the are available if witnesses attesting inapplicable witness purposes. different the time the proper as a execution prove intent to act expressing his is offered probate. disposed guage import. We this of the affidavit and its Al- issue in Boren result citing approval reached here seem holding Bartlett, harsh, in McGrew v. it must be noted this will was draft- (Tex.Civ.App.—Houston 1965, ed years and executed thirteen after our ref’d). A will was probate disap- denied in that decision in Boren which expressly signed only procedure. case because the proved witnesses affidavit, though even testimo person prop of a to devise ny a to of witness the was will introduced is erty purely at his death to another a she, witness, the other and the testa Starke, right. Poole statutory 324 thought trix all will signing were the 234, (Tex.Civ.App.—Fort 236 Worth places. appropriate recently the As reit 1959, n.r.e.); Queen, Maxey writ ref’d 206 Court, by this clear erated even evidence of 114, (Tex.Civ.App.—Fort Worth abrogate mandatory intent cannot pro the n.r.e.). If requirements writ ref’d visions of the v. Mor probate code. Morris disposing for of are property by will to be ris, (Tex.1982). altered, province Legislature, it is the of the Court, changes. not this to effect those It urges distinguisha Fleming Boren is significant is the Legislature to note ble because here the of self- portion amended of the section 59 Probate Code proving affidavit the witnesses was decision, twice of the since date Boren on the same page signa as the testatrix’ statutory but has not modified the require ture. The in a witnesses Boren self- Tex.Gen.Laws, ments at issue here. 1971 proving affidavit which to was attached 974; Tex.Gen.Laws, Ch. 5 at § will. We do find signifi not this difference Legislature Ch. at 1922. § “[T]he cant. will and the self-proving affida statutes, regarded intending must be as documents; vit are separate and distinct reenacted, repeatedly when inas the case appearance their on paper a sheet single of here, given to be that interpretation which not does alter their separate character. by has been settled the courts.” Marmon Section of the requires Probate two Code Aviation, Inc., 182, 187 Mustang competent witnesses to attest the execution (Ver of the will. Tex.Prob.Code Ann. 59§ 1968). non appear attestation must on Fleming urges next to Court remand the will—not on another document. As the issue of fees to the court of pointed out in self-proving pro “the appeals of adequacy so her award visions are attached not a of passed by on be that court. This issue proof concern the matter of its presented to us for the first time in Flem- only.” 402 S.W.2d at 729. Only recently ing’s rehearing. Although we application refused the for writ of error issue raised her as a point was error (Tex.Civ. Jones before appeals, brief the court of App.—Dallas ref’d), issue expressly in which a was reached probate Fleming point was denied wit court. did not because the signed only rehearing, nesses a motion for an application affida for error, vit, cross-point reply even writ of or as a they signed the affidavit twice, to the Wieh first error. signatures ap set of peared on the same as the of the end Although an executor is entitled to will. expenses be reimbursed for reasonable

Fleming we suggests ignore language spent good in a faith to attempt defend not, the affidavit consider the witnesses’ whether successful or we have signatures appearing directly as below the for recovery held the executor’s suit of at signature, required by torney’s brought origi testatrix’ section must in the fees parties signing 59. We cannot assume Moeling, nal contest. Russell v. affidavit, attorney, one whom was an S.W.2d 533 Tex.Prob.Code Ann. (Vernon 1980). did not read and were unaware of lan- The action of the § therefore, appeals, Review, Mary’s court of had the effect Court 6 St. L.J. making (1974). the trial court’s determination res judicata Fleming to future action appeals court of might pursue attorneys’ for her fees. The reversed and the of the trial omission of the court of to address appeals court is affirmed. the attorney’s fee claim to was harmful She had the obligation Dissenting by ROBERTSON, J., Opinion the error to court in motion KILGARLIN, JJ., in which WALLACE rehearing by point and to this Court join. crosspoint preserve the error. Justice, ROBERTSON, dissenting. required contends she was not I would respectfully I dissent. affirm the point raise the rehearing on appeals and admit crosspoint or as a here because probate Giddings will of Dr. Mabel prevailing party was the in the intermedi Boren, Wilkin. v. 402 S.W.2d 728 Boren ate court. She relies on our of decisions (Tex.1966), majority, a by relied on the was Barber, (Tex. v. McKelvy departure jurisprudence. radical from Texas 1964) Taggart and v. Taggart, It led to and a has harsh results created of We find neither these are trap lips for the testator whose forever controlling. cases to be In an McKelvy, The sealed. time has come to re-examine independent, ground for uphold alternative with hypertechnical compliance the the Pro- ing trial present the court’s was by as required bate Code Boren. ed to and briefed in the court of appeals, ground the was not reached by require- sets out three The Probate Code wholly court in its of the trial affirmance court’s for a which is not in the ments will judgment. 1) We considered the merits of the be handwriting: testator’s The must ground reversing alternative in the lower writing; 2) signed by must the it judgments, ground person; 3) courts’ even the two credible wit- testator in and this presented point was not to Court a of 14 must attest age nesses over the petitioner’s of for writ it error their to in the by signing names of McKelvy presence error. We do not have the of testator. Tex.Prob.Code situation here. The issue of fees all complied Ann. 59. Dr. Wilkins § of of integral aspect testimony an contest three. uncontroverted independent could not as an basis for stand the witnesses in this case discloses admitting denying probate of the will. will in signed the third of Dr. Wilkins’ of at- presence purpose with the sole it unnecessary In we held was Taggart, majority Yet contin- testing same. for a to in this party crosspoint file Court cases to follow Boren line of Texas ues if to court point presented had been wills where the witnesses which nullifies wholly and a favorable affidavit, self-proving rather sign beneath a from had been obtained that court. will itself. than beneath the above, appeals opinion, as noted 1881, to courts have found that wholly was not favorable Texas Since signature on a location a witness’s right waived have Stagner, 55 In Fowler v. regarding Court consider her claim attor- will is irrelevant. upheld a (1881), fees. not consider an Tex. 393 the court ney’s may This Court his signed had name complain- where one witness attack on unless jurisdic- rather than beneath only, has invoked this below a codicil ing party Court’s material, think, we raising in a mo- the will. “It was not point tion they signed what of the instrument rehearing appeals. tion for witnesses, if that were done Nagle, their names as Nagle v. acknowledgment 458, 469(e); subscription see also Hatchell after the Tex.R.Civ.P. Calvert, testator, purpose & of it and with Supreme Some Problems attesting subscribing it as witnesses.” Oklahoma and Texas Probate Codes have virtually v. provisions; 55 Tex. 400. A witness in Franks identical (1885), Chapman, Supreme 64 Tex. 159 who was also the Oklahoma Court has however clerk, county name to his self-proof his serve held that certificate, acknowledging official the exe- since the attestation as an attestation cution the will. This did not affect the be in partic of a will need not “clause” validity of the clerk’s as an at- signature Cutsinger, re ular form. Estate of testing witness. Similarly, Florida, Saathoff rejecting in expressly P.2d at Saathoff, 101 S.W.2d (Tex.Civ.App.— stated, line of cases “The Texas Boren ref’d) Antonio writ San the fact that we view form above substance and places one witness as a notary beneath a it.” In re Estate of decline follow Char notary public nullify certificate did not his ry, appel 359 So.2d at 545. Even a Texas signature. its late court has noted reluctance follow “compelled obey” stating Boren it provisions self-proof of wills was the decision. Jones incorporated into the Texas Probate Code 1955. Acts p. 54th ch. 55. Leg., —Dallas ref’d). The first case to construe the provisions Bartlett, was McGrew underlying provisions philosophy 702 (Tex.Civ.App. —Houston of wills in the on execution Texas Probate ref’d). Close on its heels came Boren every Code is to allow citizen the (Tex.1966) S.W.2d 728 which privilege disposing property of his as he followed McGrew denying probate of a Bader, sees fit. Scheetz will since the witnesses signed had beneath ref’d). —Galveston affidavit be- rather than This absolute be a solemn “would neath an attestation clause. mockery, arbitrary if mere rules were I to frustrate and submit that suffered defeat that inten- self-proving affidavit Ball, serves the same function as an tion Paul Tex. attestation [of testator].” clause, i.e., witnesses, (1868). that I urge at the re- Texas cases testator, and in the quest presence beginning with McGrew v. Bartlett signed have their names as witnesses to the Boren v. Boren have thwarted hosts tes- testator’s will. This result tamentary dispositions arbitrary harmonious on based with language in Section 59 of the rules of construction. Probate Code requires because that section stronger case makes even a present

only the witnesses attest it uphold the argument will of Dr. Wilkins. specify does not signa- the location of their below the witnesses tures, preclude nor does it the self-proving on the as affidavit which was same fulfilling affidavit from re- the attestation the last article of Dr. Wilkins’ will. quirement. signa- Boren the affidavit and witnesses’ state, Montana,

Only adopt one other appeared separate page. tures on a reasoning ed the of Boren. Matter of Es six signatures witnesses’ here are less than Sample, testatrix, tate of 175 Mont. 572 P.2d 1232 inches beneath that of the Dr. Oklahoma, (1977)1. Kansas and Florida Wilkins. Had that six inches in which specifically typed have held that Boren is not con self-proving affidavit been left blank, trolling dispute their states. In re Estate of no to prop- there would be as Here, Cutsinger, (Okl.1968); 445 P.2d 778 Matter no clearly er attestation. there is Petty, of Estate of 227 Kan. 608 P.2d evidence fraud or undue influence (1980); In re of Charry, credibility Estate of the witnesses’ destroy Dist.1978). (Fla.App. So.2d 544 4th attestation. Boren; appellate required by

1. An Arizona court cites how aswill the Arizona stat Mackaben, ever the will failed in that case ute. 126 Ariz. because the Matter of Estate 1980). (Ariz.App. witnesses were not when the testatrix P.2d Concurring Opinion ROBERTSON, J., a self-proving I would hold that KILGARLIN, JJ., requirements in which WALLACE and satisfy can attestation Code, where, join. Probate Section here, witnesses unequivocally testified ROBERTSON, Justice, concurring. intended to attest the will of the testa- action on agree I the Court’s Motion manifestly trix. To hold otherwise is un- my Rehearing, origi- adhere to but still Boren v. its

just. progeny Boren and dissent. nal should be overruled. JJ., KILGARLIN, join in WALLACE KILGARLIN, JJ., join WALLACE and concurring opinion.

this dissent. ON MOTION REHEARING FOR points out correctly although rehearing that appeals’ opinion

court of in this cause does fees, the issue attorney’s address appeals of the court of reversed trial court and remand CORPORATION, UTILITY SUBURBAN Therefore, re ed the entire cause. Appellant, wholly ceived £ favorable could her issue on fees for first OF PUBLIC UTILITY COMMISSION rehearing. on time in this Court motion for TEXAS, Appellee. (Tex. Taggart Taggart, C-1733. No. 1977). of Texas. Supreme Court Wich, contestant, a mo the will filed in the will con summary judgment tion for 18, 1983. May and cross- Fleming response test. filed a 6, 1983. Rehearing July Denied summary in which she attorney’s Affidavits were requested fees. attor indicating had incurred

attached $19,530.53.

ney’s fees amount response which she attacked

Wich filed The trial court

the amount of fees. Wich summary

rendered $10,000 attorney’s

awarded

fees. disput

We hold the determination of improp fees was

ed fact issue summary judgment proceeding. in a

er Gateway Bank of Beau Nat’l

Coward

mont, Company, American Fence

Himes v. Home 290-91 trial

This cause remanded of attor- of the amount

for determination re- all other fees due

ney’s over- rehearing is the motion for

spects,

ruled.

Case Details

Case Name: Wich v. Fleming

Court Name: Texas Supreme Court

Date Published: Apr 6, 1983

Citation: 652 S.W.2d 353

Docket Number: C-1334

Court Abbreviation: Tex.