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Keywords

attorneyprobatewillcredibility
appealwill

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Nichols v. Rowan, 422 S.W.2d 21

Facts

Bruce J. Nichols, a bachelor and farmer, executed a will on March 24, 1964, while hospitalized for cancer. The will was prepared by Captain Hollers, an attorney, and witnessed by Mae Medlin and Arthur Hurdle. After Nichols' death, his brother's widow and son contested the will, claiming that Medlin did not sign in Nichols' presence. The will contained all required signatures and an attestation clause, but the credibility of witness testimonies regarding the signing location was disputed.

Testator was a bachelor who operated a large farm in Karnes County. He was admitted to Ward 42—G of Brooke Army Medical Center on March 13, 1964, suffering from cancer of the jaw.

Issue

Did the subscribing witness, Mae Medlin, sign the will in the presence of the testator, Bruce J. Nichols, as required by law?

Contestants urge there is no evidence, or, in the alternative, the evidence is insufficient to support the jury finding that the attesting witness Mae Medlin was in the presence of testator when she subscribed her name to said writing.

Rule

The Texas Probate Code requires that a will must be attested by two or more credible witnesses who subscribe their names in the presence of the testator. A full attestation clause is prima facie evidence of the will's validity.

This section provides in part: ‘Every last will and testament, * * * shall be in writing and signed by the testator * * * and shall, if not wholly in the handwriting of the testator, be attested by two or more credible witnesses above the age of fourteen years who shall subscribe their names thereto in their own handwriting in the presence of the testator.’

Analysis

The court examined the testimonies of the witnesses and the attestation clause of the will. Despite conflicting accounts regarding the exact location of Medlin when she signed, the court found that the jury's determination that she was in the presence of the testator was supported by the evidence. The court emphasized that the definition of 'presence' does not necessitate that the testator must have seen the signing, but rather that he was in a position to be aware of it.

Therefore, it cannot be said that there is no evidence to support the jury's finding that the witness, Mae Medlin, was in the presence of testator when she witnessed his will.

Conclusion

The court affirmed the judgment of the lower court, validating the will and rejecting the contestants' claims regarding the execution process.

The judgment is affirmed.

Who won?

Inez Hysaw Oxford, the sole beneficiary under the will, prevailed because the court found sufficient evidence supporting the jury's finding that the will was properly executed.

The Court of Civil Appeals, Barrow, C.J., held that finding that witness was in presence of testator when she witnessed his will was not so against the great weight and preponderance of the evidence as to be clearly wrong.

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