Since Judge HALL has written further in this case on motion for rehearing, I have concluded that my original concurring opinion does not quite fit the situation, and it is therefore withdrawn and this one substituted in lieu of it.
I concur in the disposition of the appeal made by Judge HALL in reversing and remanding the case for another trial and also in overruling both motions for rehearing by appellants and appellees.
I think it obvious that the trial court found that the testimony conclusively showed the purported will of W. W. Bowers was last seen in the possession of one other than the testator, and that the evidence justifies that conclusion.
With this assumption as to the court's findings, the presumption of law prevails that testator did not revoke his will shown to have been executed on November 11, 1927. It was then incumbent upon contestants to show by a preponderance of the *Page 217 testimony that testator did revoke that will. The settled rule seems to be that (1) if the proposed will was last seen in the custody of testator and it is not produced on application to probate it, the presumption is that he destroyed it, but (2) when the proper execution of the will has been established, and it was last seen in custody of one other than testator, and is not produced when probate is proposed, no such presumption prevails and, in such cases as Rape v. Cochran, Tex. Civ. App. 217 S.W. 250, writ refused, the burden of proof rests upon contestants to show revocation. Our attention is called to May v. Brown, Tex., 190 S.W.2d 715. In that case the question we have before us was not involved. There, the proposed will was produced, but it was contested upon several grounds, one of which was that testator had made a subsequent will revoking the one proposed. In such cases, certainly the burden of proof, under the statute, rested upon proponent to show that the will proposed and produced had not been revoked, especially when attended by "Circumstances which cast suspicion upon it." [217 S.W. 251]
The single special issue submitted in the instant case did not place the burden of proof upon either party, but the instruction given with the issue provided: "The burden of proof is upon the proponent to show that the instrument dated November 11, 1927, and offered in evidence as proponent's exhibit No. 1, was not destroyed by W. W. Bowers." (Said exhibit and instrument referred to was the carbon copy of the proposed will).
It is my opinion that contestants' Exhibit "A" was admissible in evidence against the objections made by proponents. This document had some of the phraseology common to wills but for various reasons could not be denominated a will. It contained language purporting to revoke all former wills made, and there is substantial testimony that it was signed by W. W. Bowers. The instrument was not admissible as a subsequent will, for it was not such, but because of the declaration of revocation of former wills, therein. It has often been held in this state that declarations by a testator of revocation of his will were admissible in evidence when proven by competent testimony. See May v. Brown, Tex.,190 S.W.2d 715. We can see no difference in the rule admitting such oral statements and such as these in writing; the latter, it seems, would prove to be more accurate than the memory of some person about statements made in the past by a testator.
The purported signature of W. W. Bowers to the document offered in evidence was contested, but there was ample evidence in support of the genuineness of the signature to make it admissible in evidence.
There is another very important phase of this appeal necessary for our determination. It is, did intervener Logan have a right to intervene as proponent when Burch, the named executor, withdrew from the case and disclaimed all rights given to him by the terms of the purported will, and did Logan have the legal right to further prosecute the case on appeal? Contestants vigorously contend that Logan had no such rights, because he was shown by the testimony to have no interest in the subject matter.
All members of this court have not agreed upon this point, as will be seen by Chief Justice McDONALD's dissenting opinion. The question goes to the heart of this appeal.
If intervener had no right to succeed Burch as proponent, then the will has not been presented for probate and all proceedings below are without force or effect. The will provided in effect that if Burch should fail or refuse to act in the premises then the court should appoint some suitable person to carry out the terms of the will. It would appear that this very thing happened in so far as presentment of the will for probate was concerned. Whether or not the court would have designated some person other than intervener to propose the will is beside the question; it remains that the court did allow him to intervene for that purpose.
Intervener alleged that he had an interest in the estate, by reason of being a son of one of the principal beneficiaries named in the will. He did not aver that his father had predeceased the testator but the testimony disclosed this to be true. The record also shows that he has a suit pending in the *Page 218 district court of Wise County seeking to recover a portion of the estate of testator. The full nature of that suit is not disclosed. We are not prepared to say that, in his pending suit, he is not relying upon some form of contract between his father and testator, and if the will should be admitted to probate it might obviate many important issues to arise in the other suit; whether such disclosures are beneficial or detrimental to him is no concern of this court; if the will is denied probate it may disclose a breach of contract between intervener's father and testator. In either case instanced he would have a real interest in whether or not the will should be probated. It is the general rule that the probate court will not attempt to construe a will, but only determine if the proposed document is the last will of a deceased person.
We cannot at this time say that intervener had no interest in the estate of testator. We are unwilling to judicially determine at this time that intervener had no interest therein, when the question is not fully before us. Much time has now elapsed since the death of testator, and again, we have no means of knowing whether or not limitation would bar the probate of deceased's will, if any he had.
It may be that intervener was in perfect good faith in the belief that he had an interest in the estate and that his right to establish it as a fact depended upon whether or not the proposed will was subject to probate. It is certain that the named executor had originally proposed the will but subsequently withdrew from and declined to further prosecute the case. It is equally certain that no other legatee came to the assistance of the court to propose its probate, and with the consent of the court intervener did vigorously prosecute the case. A somewhat similar situation arose in Howley v. Sweeney, Tex. Civ. App. 288 S.W. 602, where it was held that proponent had a right to intervene in the case and have the will probated as a muniment of title.
The Judge of the Probate Court in each county has an official responsibility to hear and determine all probate matters. Texas Constitution, Sect. 16, Art. V, Vernon's Ann.St. Article 3308 empowers the county judge, when written complaint is made, to require any person having in his possession a will or other papers of a deceased person, to present the same, and a penalty is fixed against those who disobey such an order. This article has been construed to authorize the court to compel the probate of a valid will. In re Glynn's Estate, Tex. Civ. App.62 S.W.2d 1019, writ refused.
The probate court has the duty to see that the wishes of a deceased person expressed in a will are carried out. This is true, for the reason, by the provisions of Article 3355, R.C.S., if a person dies leaving a will which does not name an executor, or where one is named and he fails to qualify as such within the time required by law, then if administration appears to the court to be necessary, he shall appoint an administrator with will annexed, of the estate of the testator.
Article 3339 provides that application for probate of a will may be made by (a) the testamentary executor, or (b) by any person interested in the estate of testator, and (c) application for letters of administration upon an estate may be made by any person.
Burch was named in the will as independent executor and the court would have no right to name any other person clothed with all the power and authority as Burch would have had if appointed. Simpkins, Administration of Estates, 3rd Ed., p. 64.
When the proposed will (not produced) was before the court sitting in probate matters, and the testamentary executor withdraws from the case, I think it is encumbent upon the court to proceed in some orderly manner to determine if the proposed will should be admitted to probate. It does not appear from the will that any of the named legatees reside in Wise County nor does it appear that any one or more of them had knowledge that testator had made a will, that it could not be produced, or that a carbon copy of it was to be found in Mr. Burch's office during the two and half years since the death of the testator.
Irrespective of intervener's adoption of Burch's application, he could not be appointed independent executor; all that *Page 219 could have been done was for the court to determine if the will should be probated, and if found necessary, to appoint a testamentary executor or administrator with will annexed.
Article 3449 provides that administration under a will shall be governed by the laws relating to administration, except where otherwise provided by law or by direction of the will. This subject is discussed in Balfour v. Collins, 119 Tex. 122, 25 S.W.2d 804.
It is my belief that in such cases as this, when a purported last will of a deceased person has in fact been proposed for probate, and the testamentary executor abandons the case, and no named beneficiary appears to continue prosecution of the cause, the trial court clothed with the responsibilities above outlined, could name some suitable person for that purpose; but here we have intervener asserting an interest and proposing to intervene and the court permits it. If it now be held that all such acts were illegal, then it must follow that the will has not been presented for probate and all former orders are ineffective. Whether or not the court would eventually determine if the estate requires testamentary or other administration, and whom he will appoint for that purpose, if found necessary, is unimportant to us. See Simpkins Administration of Estates, 3rd Ed. p. 82; Ratcliffe v. Seaboard National Bank, Tex. Civ. App. 46 S.W.2d 750.
As a general rule it can be said that a person who is not aggrieved by a judgment has no legal standing for the prosecution of such suit either at trial or on appeal. May v. Brown, Tex., 190 S.W.2d 715. But in practically all cases cited and those found by us on the point, are based on the general rule, or involve parties contesting will probate. In the latter class of cases, we need not resort to the general rule for the reason the plain language of Art. 3315, R.C.S. limits the right tocontest such matters to parties interested in the subject matter. In this connection we are cited to the case In re Glynn's Estate Tex. Civ. App.62 S.W.2d 1019, writ refused. In that case an administration had been allowed, and Mrs. Wright proposed the probate of a will, declaring she had no interest in the subject matter. The probate was denied, upon grounds therein stated, but the court found it unnecessary to determine if Mrs. Wright could legally propose the probate of the will.
As before stated I am unwilling to assent to a judicial determination at this time, finding that intervener has no interest in the subject matter of this suit, when we know he has a suit pending to determine that question. When the time comes for trial of that case, intervener should not be confronted with a judicial determination that he has no interest in what he there, perhaps, seeks to recover.
With these additional suggestions, I concur in the reversal of the judgment of the trial court and in overruling each of the motions for rehearing.