M. G. Aven v. Green
2 Tex. Sup. Ct. J. 163, 320 S.W.2d 660, 159 Tex. 361 (1959)
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Rule of Law:
Offering some evidence in support of a probate application, even if defective, constitutes an active attempt that preserves the right to appeal; furthermore, a valid codicil that sufficiently references and is inseparably dependent upon a prior will operates as a republication of that will, allowing proof of the codicil to establish the will itself.
Facts:
- Katie Bell executed a will on March 31, 1937, along with a codicil on June 28, 1938.
- Katie Bell later executed another will on February 27, 1948, and two subsequent codicils on August 20, 1949, and February 1, 1950.
- M. G. Aven filed an application to probate Katie Bell's 1948 will and its two codicils.
- Mrs. Mary F. Green et al. filed an application to probate Katie Bell's 1937 will and its codicil.
- Each party filed a contest to the other's application for probate.
- At the hearing, M. G. Aven introduced an affidavit from C. S. Farmer, a subscribing witness to the 1949 codicil, which was signed and sworn before a notary public out of court. The affidavit referred to the 1949 codicil as Katie Bell's last will but made no mention of the 1948 will, and M. G. Aven offered no other evidence for the 1948 will.
- The 1949 codicil explicitly refers to Katie Bell's "last will and testament, bearing the date February 27, 1948," and declares itself "to my said last will and testament and to be taken as a part thereof," while revoking and adding specific bequests.
Procedural Posture:
- M. G. Aven filed an application in the County Court of Coryell County for the probate of Katie Bell's 1948 will and its codicils.
- Mrs. Mary F. Green et al. filed an application in the County Court of Coryell County for the probate of Katie Bell's 1937 will and its codicil.
- The County Court rendered judgment denying M. G. Aven's application and admitting the 1937 will and 1938 codicil to probate.
- M. G. Aven perfected an appeal from the County Court's judgment to the District Court of Coryell County.
- The District Court, acting on Mrs. Mary F. Green et al.'s plea in abatement and motion to dismiss, dismissed M. G. Aven's appeal, ruling that M. G. Aven had abandoned his application by offering only an out-of-court affidavit.
- M. G. Aven, as appellant, appealed the District Court's judgment to the Court of Civil Appeals.
- The Court of Civil Appeals affirmed the judgment of the District Court.
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Issue:
1) Does a will proponent who offers a defective affidavit as their only evidence in a probate proceeding, thereby showing an active attempt to support their application, abandon their application and forfeit their right to appeal? 2) If a codicil is inseparably connected to and sufficiently references a prior will, is proof of the codicil alone sufficient to establish the prior will for probate?
Opinions:
Majority - Mr. Chief Justice Hickman
No, M. G. Aven did not abandon his application and forfeit his right to appeal, and yes, proof of the codicil can establish the prior will. The court held that offering an affidavit, even if defective or incompetent, constitutes an active attempt on the part of the petitioner to support their application for probate, thereby preserving the right to appeal. The proper test for abandonment for appeal under Section 28 of the Texas Probate Code is whether a proponent actively attempted to support their application, not whether they made out a prima facie case or offered legally competent evidence. Questions of admissibility or competency of testimony are matters for a trial on the merits, not grounds for dismissing an appeal. The court further ruled that a properly executed and valid codicil which contains a sufficient reference to and is inseparably dependent upon a prior will operates as a republication of the will, making the will and codicil one instrument speaking from the codicil's date. Since the 1949 codicil expressly referenced and modified the 1948 will, it was inseparably connected, and thus, proof of the 1949 codicil would also establish the 1948 will without additional proof.
Analysis:
This case clarifies the standard for abandonment in probate proceedings for the purposes of appeal, establishing that any active attempt to support an application, even with defective evidence, is sufficient to preserve the right to a trial de novo in district court. This lowers the procedural barrier for appeals in probate, ensuring that issues of evidentiary competency are decided on the merits rather than as preliminary matters. It also reinforces the doctrine of republication by codicil, providing clarity on how a codicil can validate and incorporate a prior will, streamlining the probate process when wills and codicils are closely linked.
