dissenting.
I disagree with the Court’s conclusion that the trial court’s alleged erroneous ex-elusion of evidence requires reversal. More fundamentally, however, I disagree with the manner in which the Court has decided this case. Today’s majority opinion discusses only one of the complaints that the McCraws properly preserved for our review. To reverse and remand the case for a new trial “on all issues” without any guidance as to the McCraws’ other complaints ensures another appeal, wastes judicial resources, and unnecessarily adds to the parties’ emotional and financial burdens. I write separately to address the issues before us which the Court has chosen not to address.
By statute, Donna Maris’ federal employee group life insurance benefits are payable “to the beneficiary or beneficiaries designated by [her] in a signed and witnessed writing received before death in the employee office.” Absent any such designated beneficiaries, the benefits are payable to her widower, Jimmie Maris. 5 U.S.C. § 8705(a). When Donna Maris died, her employee office files did not contain a written designation of beneficiaries. Her children (the McCraws) now contend that a writing designating them as beneficiaries in compliance with the statute was received in the office but then lost. To establish their contention, the McCraws rely entirely upon circumstantial evidence, some of which, they now contend, the trial court erroneously excluded. See — S.W.2d at -n. 4. The McCraws lost their case at the trial court and at the court of appeals. Now this court, without offering any guidance to the trial court or the parties, mandates that the parties must start over. Assuming that the trial court and the court of appeals will adhere to their prior rulings, we ultimately will have to address again the tough questions currently before us.
First, the McCraws complain that the trial court should have admitted the testi*759mony of four witnesses who would have testified that they searched their own personnel files after Donna Maris’ death and found one or more beneficiary designation forms missing. Although this testimony is not hearsay, Tex.R.Civ.Evid. 801, it nevertheless is not admissible because it is not relevant. It does not have, in the definitive language of Rule 401, “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” One cannot logically deduce that Donna Maris’ form was lost from the mere fact that four people found that forms were missing from each of their files. If there were only five files total, missing papers from 80% of them might suggest a pattern; but if there were five thousand files, a sampling of .08% of them reveals nothing probative. Without additional information, which the McCraws failed to offer, the excluded testimony would not make the determinative fact of whether Donna Maris’ form was lost more probable or less probable. Thus, in my opinion, the trial court did not err in excluding this evidence.
Next, the McCraws argue that the trial court should have admitted what the Court calls a “duplicate” beneficiary designation form in Donna Maris’ handwriting. Actually, there is no evidence that this excluded form was ever a duplicate of anything. Rather, two witnesses testified that Donna Maris’ habit was to draft a form in handwriting and then type up the copy to be filed. The McCraws contend that the excluded form is such a draft designating the McCraws as beneficiaries of Donna Maris’ life insurance benefits. Although the form is an out-of-court statement, it is not hearsay because it was not offered to prove the truth of any matter asserted. Indeed, it was offered to prove merely that it existed, implying that Donna Maris followed her usual habit of typing and filing a form based on her handwritten draft. The trial court erred in excluding it as hearsay. The inquiry then is whether this error was reversible, and I conclude that it was not.
The third group of evidence excluded by the trial court and complained about by the McCraws consists of Donna Maris’ affidavit, her will, and testimony that she said she filed forms designating her children as beneficiaries of her life insurance. This latter testimony is clearly inadmissible hearsay. Donna Maris’ will was admitted by the trial court. The affidavit, signed two days before Donna Maris died, avers:
To: Any and all insurance companies, employers and other entities from whom any monies are payable as a result and upon my death.
I, Donna Ann Maris, being of sound mind, hereby revoke all beneficiary designations in any and all life insurance policies, pension and retirement benefit programs, and all other plans that require payment of any funds on my death and hereby make the following beneficiary designation, to wit:
To my executrix, Lena J. Wiggins, to be added to my estate and held, administered and disbursed in accordance with the provisions of my last will and testament.
The McCraws offered the affidavit to prove that their mother did not change her decision to make them her beneficiaries, and in that context, the affidavit is clearly hearsay. Even if the affidavit fell within an exception to the hearsay rule, it is still inadmissible because it is irrelevant. There is no dispute in the evidence that Donna Maris wanted her children to be the beneficiaries of her life insurance benefits. At one point, Jimmie Maris stipulated that Donna loved her children and had an excellent relationship with them. The dispute is not whether Donna changed her mind about her children, but whether she filed a written designation of beneficiaries with her personnel office. The affidavit has no relevance to this issue and was therefore correctly excluded.
Even supposing that the trial court did err in excluding the evidence, I disagree that the error “was reasonably calculated to cause and probably did cause rendition of an improper judgment” to justify reversal. See Tex.R.App.P. 81(b)(1). If anything, the excluded affidavit seems to impair the McCraws’ position; for if Donna *760McCraw really thought that she filed a form designating her children as her beneficiaries, it is difficult to explain why she felt the need to revoke that designation on her death bed. Better to have left matters alone or to have averred that she had filed the designation. The affidavit implies, consistent with the trial court’s judgment, that Donna Maris never filed a written form designating her children as her beneficiaries. The testimony concerning missing forms in four other employee files is, as discussed above, meaningless and could not have caused the fact finder to think the McCraws’ contention either more or less likely. The form in Donna Maris’ handwriting might have had some importance to the fact finder, but this single piece of circumstantial evidence would not have been so convincing as to change the result of the case.
It is apparent that the Court is stretching to give the McCraws another bite at the apple. If the parties’ positions were reversed, that is, if the McCraws would be entitled to Donna Maris’ life insurance benefits only if she did not file a beneficiary designation, I doubt seriously that the Court would feel compelled by the rules of evidence to conclude that she filed a form which was subsequently lost. Admittedly, the result reached by the trial court and affirmed by the court of appeals is harsh, but it was based on the statute which established “an inflexible rule that a beneficiary must be named strictly in accordance with the statute, irrespective of the equities in a particular case.” Metropolitan Life Ins. Co. v. Manning, 568 F.2d 922, 926 (2nd Cir.1977). The parties have not alleged that the federal statute governing this case is ambiguous, indefinite, or uncertain. No matter how much we may abhor the result, we are duty-bound to follow the statute as written.
In summary, in an unorthodox manner, the court has vacated the judgment and opinion of the court of appeals and has declared that “they do not control the disposition of these evidentiary issues on retrial.” — S.W.2d at-n. 4. The trial court and the parties are put in the awkward position of predicting how this Court will ultimately rule. Because the court is either unable or unwilling to resolve these difficult questions, it has guaranteed at least one more trip through the Texas appellate system with attorneys’ fees eating up most, if not all, of any recovery to either side.
For the above reasons, I dissent.