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ZACK MERCER MOZLEY v. ANNE RUTH TABOR (08/08/72)

August 8, 1972

ZACK MERCER MOZLEY, APPELLANT
v.
ANNE RUTH TABOR, ET AL., APPELLEES.



From 40th Judicial District Court, Ellis County, Texas

Author: James

This is a will contest involving a handwritten will of M. O. Mercer, deceased. Appellant Zack Mercer Mozley was named Independent Executor without bond and sole beneficiary in the will in question. Mozley filed an application to probate this will in the County Court of Ellis County, Texas, and accompanied same with a photocopy of the handwritten will which bore the date "11/10/67" in the upper left-hand corner. No explanation was contained in the application as to why the original of the will was not filed. Appellant is a third cousin of the deceased who was twenty years old at the time of filing the application, and was a resident of Arlington, Tarrant County, Texas. Appellee Anne Ruth Tabor and the other Appellees, being also relatives and heirs at law of the deceased, contested the will in the county court. After a contested trial, the county court admitted the will to probate; whereupon, Appellees appealed to the District Court of Ellis County. A trial de novo was had to a jury, to whom five special issues were submitted.

Special Issue No. 1 inquired:

"Do you find from a preponderance of the evidence that M. O. Mercer signed the instrument as shown by Plaintiff's Exhibit No. 1? Answer 'he did' or 'he did not'". To this issue the jury answered, "he did not". The remaining issues were conditionally submitted upon an affirmative answer to Special Issue No. 1, and under instructions of the court were not answered by the jury.

The trial court entered judgment denying probate of the will, pursuant to the jury's answer to Special Issue No. 1, from which Appellant appeals on two points of error.

Appellant's first point contends that there is no evidence of probative force to support the jury's finding that M. O. Mercer did not sign the will. The second point asserts that the jury's answer is "contrary to the evidence". We overrule both points and affirm the trial court's judgment.

In passing upon a "no evidence" point (Appellant's first point) we may consider only that evidence, if any, which, viewed in its most favorable light, supports the jury's finding, and we must disregard all evidence which would lead to a contrary result. Biggers v. Continental Bus System, Inc., (Sup.Ct. 1957) 303 S.W.(2) 359. This is the test of legal sufficiency of the evidence. Appellant's second point, contending that the jury's verdict is "contrary to the evidence" has been treated by us as if Appellant had asserted that the verdict was so against the great weight and preponderance of the evidence as to be manifestly unjust. In Re King's Estate (Sup.Ct. 1951), 244 S.W.(2) 660. Under this test, we are required to examine the entire record and to weigh the evidence in support of and against the jury's finding. If we find that the jury's finding is so against the great weight and preponderance of the evidence as to be manifestly unjust, then our duty would be to reverse and remand the cause to the trial court for retrial. This is known as the factual sufficiency test of the evidence.

Our careful examination of the entire record leads us to the conclusion that there is not only some evidence of probative force which supports the jury's finding, but that the verdict is amply supported by the evidence. In short, the evidence passes both the legal and the factual sufficiency tests.

The will in question, asserted by Appellant to be in M. O. Mercer's handwriting reads as follows:

"That I, M. O. Mercer, being of sound and disposing mind

and memory and desiring to arrange my worldly affairs

while I have strength to do so. Do declare and publish

this my last will and testament.

First, I direct all of my just debts including funeral

expenses and expense of last sickness be paid by the

executor hereinafter named as promptly as it is convenient

so to do.

Second, I further direct that I be given a christian

like burial in the manner suitable to my ...


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