Nichols v. Rowan
1967 Tex. App. LEXIS 2230, 422 S.W.2d 21 (1967)
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Rule of Law:
A will's attestation clause reciting that all statutory formalities were met is prima facie evidence of the will's valid execution, which is not overcome by a witness's contradictory testimony if that witness's credibility is impeached. The requirement that a witness sign in the testator's 'presence' is satisfied under the 'conscious presence' test, meaning the testator could have seen the witness sign by some slight physical exertion.
Facts:
- Bruce J. Nichols, a 76-year-old bachelor, was a patient at Brooke Army Medical Center being treated for cancer of the jaw.
- An army attorney, Captain Hollers, prepared a will for Nichols after conducting two interviews with him in his hospital ward.
- On March 24, 1964, Nichols executed the will, which left his entire estate to his niece, Inez Hysaw Oxford.
- The will contained a standard attestation clause and a self-proving affidavit, which were signed by Nichols and two subscribing witnesses, Major Mae Medlin and Sergeant Arthur Hurdle.
- Hurdle testified that he signed at the foot of Nichols' bed but could not be certain if Medlin signed there or at the nearby nurse's desk.
- Medlin testified that she signed the will at the nurse's desk, which was separated from Nichols' cubicle by a five-foot partition that may have blocked his view unless he was sitting up or standing on the end of his bed.
- Medlin's credibility was challenged because she testified with certainty about other facts surrounding the will's execution which were proven to be incorrect, specifically that Nichols was being transferred to another hospital that day when records showed the transfer occurred over three months later.
Procedural Posture:
- An instrument purporting to be the last will of Bruce J. Nichols was offered for probate.
- Dwight M. Nichols, Sr., the testator's brother, filed a contest to the will in the trial court.
- Upon the death of Dwight M. Nichols, Sr., his widow and son were substituted as contestants.
- Following a jury trial, the trial court admitted the will to probate.
- The contestants (the widow and son) appealed the trial court's judgment to the Texas Court of Civil Appeals.
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Issue:
Does a witness's act of signing a will at a nurse's desk, potentially outside the testator's direct line of sight but in the same room, satisfy the statutory requirement that the witness subscribe their name 'in the presence of the testator'?
Opinions:
Majority - Barrow, Chief Justice
Yes, the witness's act of signing the will satisfies the statutory requirement of being in the testator's presence. A full attestation clause stating that all legal formalities were followed creates prima facie evidence of the will's validity. This strong presumption is not necessarily rebutted by a witness's faulty memory or even contradictory testimony, especially when that witness's credibility is otherwise impeached. The court rejects a strict 'line of sight' test for 'presence,' instead adopting the 'conscious presence' test. Under this test, the requirement is met if the attestation occurred where the testator, unless blind, was able to see it from his actual position, or from a slightly altered position he could readily achieve without assistance. Given the conflicting testimony, the impeached credibility of the dissenting witness (Medlin), and the strong evidence of the attestation clause, the jury had sufficient evidence to find the will was validly executed.
Analysis:
This decision solidifies the evidentiary weight of a formal attestation clause in a will, making it significantly more difficult to challenge a will based on the conflicting or fading memories of witnesses. It clarifies that the 'presence' requirement in Texas is not a rigid line-of-sight rule but a more flexible 'conscious presence' test, where the testator must merely have been able to see the signing by a slight physical exertion. This ruling promotes the finality of properly drafted wills and protects them from challenges based on unreliable subsequent testimony, thereby providing greater stability and predictability in the probate process.
