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LIZABETH SCOTT v. SARAH DUGGER SCHWARTZ (05/05/71)

May 5, 1971

LIZABETH SCOTT, APPELLANT
v.
SARAH DUGGER SCHWARTZ, APPELLEE



Appeal from Bexar County.

Fred V. Klingeman, Associate Justice.

Author: Klingeman

This is a will contest concerning the validity of a purported codicil to the last will and testament of William L. Dugger, Jr. Under date of August 21, 1964, William L. Dugger, Jr. signed a printed and typewritten instrument wherein he devised all of his property to his sister, Sarah Dugger Schwartz. This will was duly attested by two witnesses in accordance with the requirements of the Texas Probate Code. On August 9, 1968, approximately one year before his death, the decedent took a conformed copy of such typewritten will, and in his own handwriting, noted on the copy and in the margin thereof opposite Article II*fn1 (the bequeathing clause) the words, "Witnessed this change August 9th 1968 at San Antonio, Texas;" added to the bequeathing clause the words, "and Lizabeth Scott my financee;" struck out the typewritten words "to her" and interlined in lieu thereof the words, "in equal shares." He also signed on such copy in his own handwriting his initials, "W.L.D., Jr." Such writing also contains the signature of one witness, "M. C. Yates." If one adds the handwritten words to the typewritten parts thereof, such clause would read as follows: "I give, will, devise and bequeath to my sister, SARAH DUGGER SCHWARTZ, and Lizabeth Scott my financee all the property of every description that I own at the time of my death, leaving the same in equal shares absolutely and in fee simple."

On September 5, 1969, the Probate Court of Bexar County, Texas, admitted the formal attested typewritten will to probate, subject to a later determination by the court of the validity of the codicil amending it. On December 15, 1969, the Probate Court entered its order wherein the will of August 21, 1964, theretofore admitted to probate "is modified, altered and amended and republished by the codicil dated August 9, 1968, so as to add to Article II thereof following the words 'Sarah Dugger Schwartz' the words, 'and Lizabeth Scott my financee' and by striking out the words, 'to her' in said Article II and inserting in lieu thereof the words, 'in equal shares.'"

On appeal to the District Court, the District Court, without the intervention of a jury, held that such codicil was not a valid holographic codicil and denied the probate thereof. The trial court filed findings of fact and conclusions of law in which it found, among other things, that the will of William L. Dugger, Jr. dated August 21, 1964, was executed with the formalities and solemnities required by law and is entitled to probate; that the handwritten words of William L. Dugger, Jr. contained on the conformed copy of his will are not self-contained and are meaningless by themselves; and that the purported codicil of William L. Dugger, Jr. dated August 9, 1968, does not comply with Sections 59, 60 and 63 of the Texas Probate Code, and probate thereof should be denied.

By one point of error appellant asserts that the trial court erred in refusing probate to the codicil of William L. Dugger, Jr., dated August 9, 1968, written wholly in Dugger's handwriting and executed by him in compliance with Sections 60 and 63 of the Texas Probate Code, and declaring his intention to change his existing will and devise one-half of his estate to his fiancee.

Section 59 of the Texas Probate Code provides that every will, if not wholly in the handwriting of the testator, be attested by two or more credible witnesses above the age of fourteen who shall subscribe their names thereto in their own handwriting in the presence of the testator. Section 60 provides that where the will is written wholly in the handwriting of the testator, the attestation of the subscribing witnesses may be dispensed with. Section 63 provides that no will in writing, and no clause thereof ...


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