Hinson v. Hinson
1955 Tex. LEXIS 539, 280 S.W.2d 731, 154 Tex. 561 (1955)
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Rule of Law:
An unattested non-holographic instrument cannot be validated by incorporation or republication through a subsequently executed and unattested holographic document, if the combined or incorporated instrument fails to meet the statutory requirements for a valid will (i.e., being wholly in the testator's handwriting or properly attested by witnesses).
Facts:
- J.W. Hinson, Sr. died in Harris County on September 16, 1952.
- On April 20, 1951, J.W. Hinson, Sr. signed a typewritten instrument declaring it his last will, directing debt payment, devising a life estate to his wife, Ethel Mae Hinson, with remainder to his son, J.W. Hinson, Jr., and two others, providing a share for his son upon his wife's remarriage, granting power of sale, appointing executors, and revoking prior wills.
- This typewritten instrument bore the signature and seal of a notary public but was not otherwise attested by witnesses as required by law.
- On August 24, 1951, J.W. Hinson, Sr. wrote and signed a handwritten note on hotel stationery, titled 'Supplementary to my Last will, it still stands as is.'
- The handwritten note also included phrases like 'Everything is yours Darling,' instructions to 'Pay the Home off. Sell my car. Have will probated at once,' and mentioned 'my will is in brief case zipper comp.'
- After J.W. Hinson, Sr.'s death, the typewritten instrument was found in a separate compartment of his briefcase, exactly as indicated in the handwritten instrument.
- The handwritten instrument appeared on its face to be attested by three witnesses, but the parties stipulated that the signatures of two witnesses were placed on the instrument after J.W. Hinson, Sr.'s death, and the record was silent as to the third.
Procedural Posture:
- J.W. Hinson, Sr.'s widow, Ethel Mae Hinson (Respondent), filed an application in County Court to probate both the typewritten and handwritten instruments, or alternatively, the handwritten instrument alone, as his last will and testament.
- J.W. Hinson, Jr. (Petitioner), J.W. Hinson, Sr.'s child from a former marriage, contested the application.
- The County Court rendered a judgment admitting both instruments to probate.
- Petitioner appealed the County Court's judgment.
- The cause was tried de novo in the District Court without a jury, where the District Court sustained Petitioner's contentions regarding the formal typewritten document and entered a judgment probating only the holographic instrument dated August 24th.
- The Court of Civil Appeals affirmed the District Court's judgment.
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Issue:
Does a handwritten, unattested holographic document, which refers to and affirms a prior formally signed but unattested typewritten instrument as a will, operate to incorporate or republish the invalid typewritten instrument, thereby making both instruments, or the typewritten instrument alone, a valid will under Texas law?
Opinions:
Majority - Mr. Justice Walker
No, a handwritten, unattested holographic document, even if it refers to and affirms a prior formally signed but unattested typewritten instrument as a will, does not validate the invalid typewritten instrument by incorporation or republication, and thus neither instrument separately nor together can be admitted to probate under Texas law. The Court determined that the holographic instrument of August 24th was not intended as a new, independent declaration of the manner in which J.W. Hinson, Sr.'s property would pass. The opening phrase, 'Supplementary to my Last will, it still stands as is,' clearly indicated an intention not to revoke or modify the earlier typewritten instrument, but rather to refer to it as the operative will. Phrases like 'my will is in brief case zipper comp.' and advice to 'Have will probated at once' further support that the decedent viewed the typewritten document as his actual will. The statement 'Everything is yours Darling' was interpreted in context as an affirmation of the disposition made in the prior typewritten document, not a new testamentary gift. Given the decedent's prior use of formal testamentary language in the typewritten document, the informal nature of the holograph reinforced its non-testamentary intent standing alone. Regarding the validation of the typewritten instrument, the Court assumed, without deciding, that the doctrines of incorporation by reference and republication by codicil apply in Texas and could theoretically validate a prior invalid will. However, it held that these doctrines cannot be applied to circumvent the clear statutory requirements for will execution. Article 8283 of Vernon's Ann. Texas Civ. Stat. requires non-holographic wills to be attested by two credible witnesses or, if wholly in the testator's handwriting, to be a holograph. The typewritten instrument was not wholly in J.W. Hinson, Sr.'s handwriting and was unattested. The handwritten instrument, while holographic, was also unattested as a proper codicil and did not itself contain the full testamentary scheme. To allow an unattested non-holographic instrument to be validated by an unattested holograph would 'nullify the provision of our statute which requires a holographic will to be wholly written by the testator.' The Court emphasized that the typewritten paper was the 'operative testamentary instrument,' and even if incorporated, the combined document would still fail the statutory requirements for either a holographic or attested will, thus denying probate to both instruments.
Analysis:
This case provides a crucial interpretation of testamentary formalities in Texas, emphasizing strict adherence to statutory requirements for will execution. It clarifies that while doctrines like incorporation by reference and republication by codicil might exist, they cannot serve as a means to bypass explicit statutory mandates for witness attestation or the 'wholly written' requirement for holographic wills. The decision limits the scope of these doctrines, preventing an improperly executed instrument from being 'bootstrapped' into validity by mere reference in a subsequent, even properly formed, holographic document. This ruling underscores the importance of proper legal counsel in drafting wills to ensure the testator's intentions are legally enforceable and serves as a cautionary tale against informal attempts to modify or validate testamentary instruments.
