One M. W. Burch of Wise County filed for probate a purported carbon copy of the last will of W. W. Bowers, deceased. A sister of the said W. W. Bowers, deceased, along with others, filed a contest. The county court refused said copy of will to probate. The proponent appealed to the district court. The proponent Burch, who was named executor in the will, was granted the right to be dismissed from the lawsuit for all purposes, thereby cancelling any interest that he might have in the subject matter of the will, as well as denying him the right to become executor under the will. The court allowed one W. B. Logan to step into the position of proponent and the trial proceeded before a jury.
Mr. Burch was offered as a witness in behalf of the proponent, to testify to transactions and conversations with the testator, which was strenuously objected to by contestants, and the court sustained said objections. We find under the authorities that the witness was not disqualified to testify under the dead man's statute, to-wit, Article 3716, Revised Statutes of 1925, but we do find that the court was correct in sustaining objection to that portion of his testimony pertaining to circumstances surrounding a contractual agreement between the testator Bowers and legatee W. B. Logan in reference to making said will, because the court is without authority while probating the will to construe the will or to ascertain the effect of a prior contract to make a devise of property. Ellsworth v. Aldrich, Tex. Civ. App. 295 S.W. 206. The authorities granting witness Burch as a competent witness to testify under the dead man's statute are as follows: Combs v. Howard, Tex. Civ. App. 131 S.W.2d 206; Posey, et al v. Varnell, Tex. Civ. App. 60 S.W.2d 1057; Oury v. Saunders, 77 Tex. 278, 13 S.W. 1030; Richards v. Hartley, Tex. Civ. App. 194 S.W. 478 and Mayfield v. Robinson, 22 Tex. Civ. App. 385,55 S.W. 399.
We take the position in passing upon contestant's objection to the trial court in permitting W. B. Logan, the son of a named devisee, who preceded the testator in death, to become the proponent of the will on the ground that he is not an interested party, is a question that this court cannot pass upon, under the facts in this case; then, too, it would be construing the will, and the only question the court is interested in in this case is as to whether or not said will should be probated, and/or as to whether or not it was revoked. Ellsworth v. Aldrich, supra. In some instances the court may go into the interest of the proponent, but in this case we think the court had the authority to proceed with the probation of the will. It is necessary under the statute to probate a will upon ascertaining its existence, article 3308, R.C.S. 1925, especially if the will disposes of some of the property of the testator. Brown v. Burke, Tex. Civ. App. 26 S.W.2d 415.
Article 3326 contemplates that a will should be probated without delay while the witnesses are living. The case of Taylor et al v. Martin's Estate, et al, 117 Tex. 302, 3 S.W.2d 408, holds that a will should be probated even though it may become partially or totally revoked.
In the case at bar there are several bequests set out in the will other than that portion of the estate devised to the father of W. B. Logan, sufficient to make the probation of the will essential even though it might be developed that W. B. Logan has no justiciable interest in the will. We do not know from this record whether he has an interest or whether he does not have an interest, because he has not been called *Page 212 upon by proper pleadings to show his interest. Apparently, his interest has lapsed if he is relying altogether upon inheritance from his father, W. B. Logan. It is possible, however, that he may be relying upon inheritance from some of the other legatees or devisees named in the will. This is an undecided question in this record, but even though it be said that he has no interest in the will, yet the will provided that if the executor named in the will does not qualify, the court shall name another person suitable to him to act as such executor. That portion of the will is as follows: "And, in the event he shall fail or refuse to qualify as such executor within the time prescribed by law, then and in that event he requests the court to appoint some suitable person in his stead." In this case, the executor named in the will did refuse to qualify and the court in obedience to the will did name a party suitable to him, to-wit, one W. B. Logan, to proceed as proponent to probate the will, and so far as this record shows, he is a suitable proponent to all other devisees and legatees named under the will to proceed to probate the same. If it is shown, however, that W. B. Logan has no interest under the will, and that the court does not still choose him as the representative to probate the will as proponent, then in that event he would not have a right to proceed in this case.
When a will is probated without the executor named therein qualifying, then it is the duty of the probate court to name an administrator with will annexed, and under our administration laws, to-wit, Art. 3355, R.C.S., any qualified disinterested person who lives in the county may become an administrator. Balfour v. Collins, 119 Tex. 122, 25 S.W.2d 804.
The main contention of proponent is in his objection to the one issue submitted to the jury and the instructions accompanying it, to-wit:
"Issue No. 1: Do you find from the evidence that W. W. Bowers destroyed, with the intent to revoke, the will dated November 11th, 1927, and offered in evidence as `Proponent's Exhibit No. 1?' Answer yes or no.
"Answer: Yes.
"The burden of proof is upon the Proponent to show that the instrument dated November 11th, 1927, and offered in evidence as `Proponent's Exhibit No. 1,' was not destroyed by W. W. Bowers.
"If you find from a preponderance of the evidence that W. W. Bowers did not destroy the will inquired about in Issue No. 1, you will answer `No;' otherwise, you will answer `Yes.'"
He complains in his point of law No. 11 as follows:
"There being no evidence of probative force showing revocation or destruction by W. W. Bowers of this will as established by competent evidence, the court erred in submitting Special Issue No. 1, and the instruction as to burden of proof and comment as to Jury's findings, because due execution of will is shown, a delivery to third person interested therein, and, therefore, the only manner of revocation or destruction would be as set forth in Article 8285, R.C.S., and there being no compliance therewith shown, it was reversible error to submit such issue as set forth in Court's Charge."
In his point of law No. 12, he cites as error the following:
"The Trial Court erred in framing its Charge so as to place burden of proof on Proponent to show that will executed as of November 11, 1927, was not revoked, when in fact the uncontradicted evidence shows same was in possession of an interested third party at all times, and, therefore, presumption of destruction is refuted, and burden to show revocation shifted to contestant."
We shall discuss both of these assignments of error together, as they are more or less kindred to each other. The proponent tried this lawsuit on the theory that the will was last seen in the hands of one of the beneficiaries, to-wit, one B. W. Logan; that it was caused to be placed in his hands at the instance and request of the testator. Therefore, it comes within the exception to the general rule which provides that the proponent must negative the revocation of the will in a contest, and that the burden shifts to the contestants to prove revocation. We think this *Page 213 objection to the court's charge is good, and hold that the trial court erred in placing the burden of proof upon proponent. We find that under the authorities the burden of proof does shift to the contestant when the will was last seen in possession of a party other than the testator. Aschenbeck v. Aschenbeck, Tex. Civ. App. 62 S.W.2d 326; McElroy v. Phink, 97 Tex. 147, 76 S.W. 753; Id., 77 S.W. 1025, reversing Tex. Civ. App. 74 S.W. 61; Rape et al v. Cochran et al, Tex. Civ. App. 217 S.W. 250, writ of error refused.
Proponent's proposition of law No. 10 is an objection to one of the contestant's attorneys testifying as to conversations and transactions had with the testator. The record shows that said attorney only had a contingent fee in the case. This contention is therefore overruled, and is decided in the following cases: Davidson v. Gray, Tex. Civ. App.97 S.W.2d 488; Corbell v. Koog, Tex. Civ. App. 188 S.W.2d 905. The test is whether a party has an interest wherein he could contest a will or probate one. No such right exists under a contingent fee.
Proponent cites as error in his points 5, 6, 7 and 8 that the court erred in allowing parties to the lawsuit, to-wit, Harold Simmons and wife Margaret to testify to facts showing that the contestant's Exhibit A, hereinafter quoted, which is a purported signed instrument by testator, was after his death found in testator's room in a lock box, as being a transaction with decedent, and therefore, inhibited under Art. 3716. This question is decided against proponents in the case of Horst v. Tobin, Tex. Civ. App. 18 S.W.2d 221, writ refused, together with cases cited therein.
In discussing proponent's proposition 6, wherein he cites as error for the trial court to admit in evidence contestant's Exhibit A, which is as follows:
"June 24, 1941
"Last Will of W. W. Bowers
"This is my last will, revoking all other wills made by me at any time before this one.
"First — I direct that all of my debts shall be paid by Harold Simmons, out of my estate.
"Second — I give my interest in Wichita Valley Lands of Wichita County, Texas, and the oil royalty from it, which is received from the Texas Company and Phillips Petroleum Company to Harold Simmons and wife, Marguerite Simmons.
"Third — I give the balance of my estate to my sister, Mrs. Jennie Thomason of Sturgis, Kentucky.
"This is my last request and may no one attempt to change it.
"Signed W. W. Bowers
"Written by Marguerite Simmons on June 24, 1941."
We construe this written instrument as lacking in legal formality to justify its admission in evidence to support a theory of it being a will or becoming an instrument of revocation. However, contestants did not introduce the same as a will, but as circumstances to show revocation. Since this case will be re-tried, we only say that under some conditions it might become a circumstance, along with other testimony, to show revocation, and that it might become admissible for that purpose.
We overrule proponent's motion of peremptory instruction, reverse and remand the case for a new trial.