No.______________

IN RE: ESTATE OF          §     IN THE PROBATE COURT

JANE DOE, § NUMBER _____________

DECEASED § HARRIS COUNTY, TEXAS



MEMORANDUM OF LAW

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW the Probate APPLICANT, RICHARD ROE, and files this his Memorandum of Law in support of his request that the Honorable Court consider the Decedent's Last Will and Testament's wording of "executor" "without bond" to be an independent executorship designation; and that the devisee's own testimony as to the handwriting and signatures on the holographic will being proper corroborating proof of the proper execution of said holographic will.


I. INDEPENDENT EXECUTORSHIP CREATED

The specific wording in the Decedent's Will on file with this Court is as follows: "I appoint my father as executor of my estate to serve without bond." The magic wording of Texas Probate Code, § 145(b) ("(b) Any person capable of making a will may provide in his will that no other action shall be had in the county court in relation to the settlement of his estate than the probating and recording of his will, and the return of an inventory, appraisement, and list of claims of his estate.") is missing.

Some of the very earliest cases deciding this point would have held the above phrase to be insufficient to create an independent executorship. Brannon v. Morgan, 106 S.W.2d 841,844 (Tex. Civ. App. - Amarillo 1937), wr. dismd. ("request.....to be administrator over all the estate with out Bond" - held not to be independent); Smithwick v. Kelly, 79 Tex. 564, 15 S.W. 486, 489 (Tex. 1891) ("appoint....to be my executors and trustees of my will, and that no bond be required.." - held not to be independent); and Hughes v. Mulanax, 105 Tex. 576, 153 S.W.299, 300-303 (Tex. 1913) ("appoint....sole executor....required to give bond....independent of the control of any probate court, except he shall make his annual reports....acted upon by said court...." - held not to be independent as a testator cannot dictate to a probate court what it can control and what it cannot; either tell it to do nothing or allow it to do its full duty); Bains v. Coats, 244 S.W.130, 133 (Tex. Comm. 1922) ("appoint....executors...pay off...sell....shall not be exempt from giving bond...no other action shall be had in the county court....prove and record this will...and to require a report of all the acts of the executors...." - held not to be independent).

In 1947 the Texas Supreme Court announced the universal rule that if a testator wrote his/her own will, a very liberal interpretation should be used to ascertain the true intentions of the testator. Technical definitions of specific or legal words may be altered by the meaning the testator had given to those same words. Gilkey v. Chambers, 146 Tex. 355, 207 S.W.2d 70, 71 (Tex. 1947) ("In the early history of the common law, when wills were seldom written and then only by lawyers skilled in technical legal phraseology, a strict interpretation of wills were the general rule. But a far more liberal rule now receives almost universal recognition.")

So, after this pronouncement, you will see a drastic change in the cases deciding for or against the independent executorship, to the point that it could be said that there is a presumption against "dependent executorship" (no cases have made such a declaration though).

All of the cases involving this issue since the Amarillo decision in 1937 have unanimously held for independent executorship and some even predate the 1937 decision (the following decisions do not contain the statutory language of Sec. 145(b) or similar language unless so indicated below):

Finding a case since 1937 to the contrary to the above eleven cites was fruitless. That is not to imply that there may not in fact be such a case reaffirming Hughes v. Mulanax, Bains v. Coats, and Brannon v. Morgan, supra, but a Shepherdized search did not produce any.

Notice that even in Hughes v. Mulanax, supra, the testator required a bond and annual reports to be "acted upon by said court" and the will did appear to be created by an attorney and not a holographic will - it was well drafted and had attesting witnesses. The Smithwick v. Kelly, supra, decision involved a seaman and the will's terminology showed some legal draftsmanship. The Brannon v. Morgan, supra, did involve a holographic will but the will did contain the appointment of an "administrator" and not an "executor" and this may have tipped the scales in that decision. It relied upon some very, very ancient cases. The Bains v. Coats, supra, decision involved the appointment of "executors" but did in fact require a bond and did require a report of all the acts, even though it used a "no further action" type of phrase therein. None of these old cases involve the exact same scenario as this instant holographic will.

But, when those earlier decisions are compared to the later decisions following Yeager v. Bradley, supra, wherein the mere appointment of a "trustee" to have "full power to manage, control and dispose of the same," was sufficient to create an independent executorship, and Laney v. Cline, supra, wherein no fiduciary was even mentioned in the will, you can see the diverging current view of a presumption of independent executorship.

A presumption that the testator preferred a "dependent executorship" is out of step with the public's viewpoint in that area. Most, if not all of the non-lawyer clients would prefer not having to probate the will at all to pass his/her estate to his loved ones and would prefer very little overseeing by the court and/or attorney contact. To penalize a citizen who drafts his own will for failing to include the magic language of Section 145(b) is not a justifiable penalty when the code itself does not state the failure to do so will equate to a "dependent" administration. Sec. 145(b) uses the more lenient word "may" instead of "must." Even Sec. 145(a) uses the "may be created" instead of a "must be created as provided by Subsections (b) through (e) of this section." Such a "dependent" determination is not in line with the trend set out in the eleven cases cited above.


II. INTERESTED PARTY TESTIFY

Except for the possible application of the "Dead Person Rule" of Rule 601 (b), Texas Rules of Evidence, the devisee and appointed executor would be competent to testify as per Rule 601(a), Texas Rules of Evidence ("every person is competent to be a witness") and Rule 803 (19) (reputation concerning personal or family history). However, the dead person rule has a corroboration exception thereto, and the corroborating evidence may be a document (Tramel v. Billings, 699 S.W.2d 259 (Tex. App. - San Antonio 1985, no writ)) and the corroborating evidence "need not be sufficient standing alone to support the verdict but must tend to confirm and strengthen the testimony of the witness and show the probability of its truth." Bobbitt v. Bass, 713 S.W.2d 217 (Tex. App. - El Paso 1986, err. dismd.)

As to the handwriting and signature on the holographic will, there will be two disinterested witnesses testifying thereto, and these witnesses will also prove up the Testatrix's age and competency; and the corroborating exception would be applicable as to the same testimony by the devisee-executor.

The "Dead Person Rule" does not prevent an interested witness from testifying from one's own personal knowledge as to facts learned independent from a transaction with or statement by the decedent. Whitis v. Whitis, 549 S.W.2d 54 (Tex. Civ. App. - Waco 1977, no writ); Adams v. Barry, 560 S.W.2d 935, 937 (Tex. 1970) ("transaction" involves a mutuality or concert of action); Roberts v. Roberts, 405 S.W.2d 211 (Tex. Civ. App. - Waco 1966), affrmd. per curiam 407 S.W.2d 772 (Tex. 1966) (expressly approving the court's ruling that interested witnesses may testify as to the handwriting of a holographic will, their seeing and reading the same, and testifying as to the actual contents of the holographic will); Martin v. McAdams, 87 Tex. 225, 27 S.W.2d 255 (Tex. 1894) (testimony that lost will was wholly in handwriting of testator was not a "transaction" nor "statement". "The making of a will is a transaction, but it is not a transaction of the testator with the devisees or legatees," citing Harper v. Johnson, 162 Tex. 117, 122, 345 S.W.2d 277, 280.)

Thus, the testatrix's age, her signature, her handwriting, her sex, family history and birth facts, absence of children, marital status, names of any children and location of the homestead would all be within the father's and family member's personal knowledge. Further, if there is no objection to the admissibility of other testimony (sound mind, statements regarding execution of the Will, seeing the Testatrix writing the Will and signing it) and/or there is a waiver of said objection, then the testimony is nevertheless valid and competent evidence.

Some of the other Texas Rules of Evidence (1998) that may apply to such testimony are: Rule 803 (1) (present sense impression); Rule 803 (3) (then existing mental, emotional, or physical condition); Rule 803 (5) (recorded recollection); Rule 803 (15) (statements in document affecting an interest in property); Rule 803 (16) (statement in ancient documents - 20 plus years old); Rule 804 - Declarant Unavailable (death); Rule 804 (b)(3) (statement of personal or family history); and also Texas Probate Code Sec. 52 (statement of fact recorded for five years).

WHEREFOR, PREMISES CONSIDERED, the Applicant requests that this memorandum of law be filed with the permanent records of this probate proceeding and be considered by the Court at time of hearing hereon.