
In The

 
Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-05-505 CV

____________________


IN THE ESTATE OF RUBY P. JONES




On Appeal from the County Court at Law
Orange County, Texas

Trial Cause No. 12345





OPINION
	Betty Spain appeals a court order admitting her mother's 1983 will to probate. (1)  The
issue we consider is whether, under the circumstances here, an accurate photocopy of a
valid unrevoked "lost" will may be admitted to probate without the testimony of a credible
witness who read the "lost" will or heard it read.  See Tex. Prob. Code Ann. § 85
(Vernon 2003).  We affirm the order of the probate court.

 The Probate Proceedings

	Spain's mother, Ruby Jones, died on September 8, 2001.  Ruby Jones was survived
by her husband, Luther Jones, Sr., and three adult children from a previous marriage. 
Luther Jones, Sr. filed an Application for Probate of Will and Issuance of Letters
Testamentary.  An anonymous caller informed the clerk's office that the will submitted
with the application was not an original, but a copy.  The probate court granted Luther,
Sr.'s "oral trial amendment" to seek the probate of a will "that is not being produced in
Court."  See Tex. Prob. Code Ann. § 85. 
	The court admitted the copy of the will to probate and authorized the issuance of
letters testamentary.  Spain filed a Motion to Contest Admission of Will Not Produced in
Court and Issuance of Letters Testamentary and For Determination of the Heirs of the
Decedent.  Luther, Sr. died on January 5, 2003.  Spain filed a motion for partial summary
judgment claiming, among other things, the heirs were not properly served with citation
before the will was admitted to probate.  See Tex. Prob. Code Ann. § 128 (Vernon
2003).  The trial court granted Spain's motion, withdrew the will from probate, and
revoked the letters testamentary.  
	Luther Jones, Jr., the independent executor of his father's estate, sought to admit
the copy of Ruby's will to probate.  He filed a First Amended Application for Probate of
Will.  After considering the evidence and testimony at trial, the probate court granted his
application.  Spain filed this appeal. 
	The only issue appellant presents on appeal is whether the contents of Ruby's will
were sufficiently proven by the testimony of a credible witness who had read it or heard
it read.  See Tex. Prob. Code Ann. § 85.  The issue assumes section 85 applies to this
case.  We conclude section 85 does not apply. 				
 The Proof Requirements

	Section 88 of the Texas Probate Code sets forth proof requirements for probate of a
will.  See Tex. Prob. Code Ann. § 88 (Vernon 2003).  Section 88(a) requires an applicant
to prove the application was made within four years of the decedent's death, the court has
jurisdiction and venue over the estate, and citation has been served and returned in
accordance with the Probate Code.  Id. § 88(a).  Section 88(b) requires proof the will was
valid and not revoked by the testator.  Id. § 88(b).  Section 84 sets requirements for proving
a written will produced in court.  See Tex. Prob. Code Ann. § 84 (Vernon Supp. 2005). (2)
Under section 84(b), the applicant may prove an attested written will through the sworn
testimony of one or more of the subscribing witnesses.   Id. § 84(b).    
	Appellant asserts under section 85 additional proof is required in this case.  See Tex.
Prob. Code Ann. § 85.  Section 85 provides the following requirements for a written will
which cannot be produced in court:
	    A written will which cannot be produced in court shall be proved in the
same manner as provided in the preceding Section for an attested written will
or an holographic will, as the case may be, and the same amount and character
of testimony shall be required to prove such will as is required to prove a
written will produced in court; but, in addition thereto, the cause of its non-production must be proved, and such cause must be sufficient to satisfy the
court that it cannot by any reasonable diligence be produced, and the contents
of such will must be substantially proved by the testimony of a credible
witness who has read it or heard it read.  

Id.  In other words, a proponent of a written will which cannot be produced in court must
prove (1) the requirements for a valid written will to be admitted to probate, (2) the cause of
the written will's non-production and that the will cannot be produced through reasonable
diligence, and (3) the contents of the will "substantially" by a credible witness who has read
the will or heard it read.  See generally In re Capps, 154 S.W.3d 242, 244 (Tex. App.--Texarkana 2005, no pet.) (citing Coulson v. Sheppard, 700 S.W.2d 336, 337 (Tex. App.--Corpus Christi 1985, no writ)).  
The Evidence Presented

	The copy of Ruby's will admitted into evidence is dated March 4, 1983. (3)  According
to the copy, Ruby bequeathed all her "personal items" to her children equally and all of her
other assets to her husband, Luther, Sr.  The copy provided that in the event her husband
predeceased her, the three children would receive all assets in equal shares.  She made a
specific bequest of her interest in two acres of land in Jasper County, Texas, to her husband
and if he predeceased her, to her children and stepchildren in equal shares.  
	A copy of Luther, Sr.'s will, also executed on March 4, 1983, was admitted into
evidence.  His will was identified at trial as a "reciprocal" will, and was in the same format
as the copy of Ruby's will admitted into evidence.  The same witnesses and notary public
signed both wills.  Luther, Sr.'s will made specific bequests of certain personal property to
various individuals.  He left the two acres in Jasper County to Ruby unless she predeceased
him, and then to his children and stepchildren equally.  He gave Ruby a life estate in their
house, and at the expiration of the life estate, the house went to his children.  The remainder
was left to Ruby, unless she predeceased him, and then to his children equally.  	
	Leesa McMullen, a former legal assistant for the attorney who drafted Ruby's and
Luther, Sr.'s wills, identified the copy of her signature on both wills and testified she signed
the wills as a witness.  She further testified that "normal procedure" would have been
followed in executing the wills.  McMullen explained the procedure as follows: the notary
public would have sworn in McMullen and Harriet Leger, the other witness, before they
served as witnesses, and the testator or testatrix would have declared to the notary and the
witnesses in the notary's presence that the instrument was his or her last will and testament. 
Although McMullen testified she does not remember seeing Ruby execute her will, she
assumes Ruby signed the will in her presence as part of normal procedure, and as evidenced
by the recitations in the will.   
	The trial court admitted the deposition of Susan Martin into evidence.  Martin, the
notary public who signed the wills, was the legal secretary for the attorney who drafted the
wills.  Although she did not remember Ruby Jones or her will, Martin identified her signature
on the copy of Ruby's will and testified the witnesses signed in her and Ruby's presence. 
Martin further testified that the formalities of a self-proved will were observed.  See Tex.
Prob. Code Ann. § 59 (Vernon 2003).  She said the statements contained in the self-proving
affidavit of Ruby's will were true and correct.  Based on her familiarity with the format the
drafting attorney typically used, Martin testified she recognized the copy of the will as a true
and correct copy.    
	 Luther, Jr. testified Spain, Ruby's daughter from a previous marriage, spent the night
in the guest room of Ruby's and Luther, Sr.'s house the night Ruby passed away.  According
to Luther, Jr., Ruby kept her important documents in her clothes and in the guest room where
Spain spent the night.  The day after Ruby's death, Spain and her sisters came to the house. 
Luther, Jr. testified Spain told him she was taking Ruby's personal belongings because Spain
"had a will" or "a copy of the will," and under the will, she and her siblings were entitled to
Ruby's belongings.  While observing Spain and Spain's family members removing Ruby's
personal items from the house, Luther, Jr. informed Spain he could not find the will and
asked for a copy.  She agreed to bring a copy of the will upon her return to the house the next
week.  
	Luther, Jr. testified he was aware that his father and stepmother executed wills
together around 1983.  He testified he had seen a copy of Ruby's will under which Ruby's
children were to receive certain personal property.  Luther, Jr. was unaware of any revocation
or modification of Ruby's 1983 will.  Luther, Jr. and his father searched the house for Ruby's
will and located what they thought was the original.  Later they realized it was a copy.
	Spain testified the signature on the copy of the will was her mother's signature.  Ruby
told Spain "[t]wenty something years" before Ruby died that Ruby and Luther, Sr. had
executed wills.  Spain testified Ruby never told her she canceled or revoked the will.  Spain
claimed she had never seen the copy admitted at trial and denied telling anyone that she knew
the will's contents.  She testified she left the hospital after her mother died, spent that night
at her mother's house, and slept in the guest room.  She testified she told Luther, Jr. she
thought she might have a "copy of the will," or "a will," and that she would bring it.  Spain
arrived at her mother's house about a week after the funeral with three trucks and two trailers
to take Ruby's personal items.  She informed Luther, Jr. she did not find Ruby's will. 
Although she admitted she brought the trucks because she thought she was going to receive
a substantial amount of property, she denied knowing the terms of the will.
The Probate Court's Findings

	Appellant argues the evidence is legally insufficient to admit the will to probate.  A
no-evidence or legal sufficiency review must credit favorable evidence if a reasonable fact
finder could, and disregard contrary evidence unless the fact finder could not.  City of Keller
v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d
735, 739 (Tex. 2003).  If more than a scintilla of evidence supports the finding, the no-evidence challenge fails.  Canchola, 121 S.W.3d at 739.
	The trial court included findings and conclusions in its order admitting the will to
probate.  Because no separate findings of fact were requested or filed, we consider the
findings of fact contained in the order as the basis for the order. (4) We also consider implicit
omitted findings that are supported by the evidence and that support the order.  See Tex. R.
Civ. P. 299.  
	The probate court found, among other things, the following:
	5.	At the time the March 4, 1983 will was executed, Ruby P. Jones was of
legal age, sound mind, and the will was executed with the formalities
and solemnities and under the circumstances required by law to make
the will a valid self-proved will.

	6.	Decedent left a valid written Will dated March 4, 1983, which was
never revoked.  The original of this valid written Will was lost and a
photo-copy of this valid written Will was filed with the original
Application for Probate of Will and Issuance of Letters Testamentary
and admitted into evidence during the trial of this case.

	7.	Sufficient evidence exists to explain the non-production of the original
will.

	8.	The contents of the lost will were substantially proved by the testimony
and documentary evidence.

The court concluded, "The lost will dated March 4, 1983 is hereby proven, established and
admitted to probate and recorded as the Last Will and Testament of Ruby P. Jones,
Deceased."    
 As trier of fact, the probate judge determined the credibility of the witnesses and the
weight to be given their testimony.  See City of Keller, 168 S.W.3d at 819.  The court found
the contents of the "lost" will were substantially proved.  The court admitted the "lost" will
to probate, but did not further describe the contents of the will in a written order as required
by section 91 of the Texas Probate Code when a written will is not in the custody of the
court.  See Tex. Prob. Code Ann. § 91 (Vernon 2003). (5)  The court implicitly found the
photocopy in its custody was a faithful, accurate reproduction of a valid original will.
	The evidence supports the validity of the original will and the accuracy of the
photocopy of Ruby's will.  Spain identified the copy of her mother's signature.  The trial
court heard testimony and considered circumstantial evidence that Spain had the will in her
possession. (6)  She acknowledged her mother and Luther, Sr. executed wills together.  Luther,
Sr.'s will, executed on the same date as Ruby's will, appears in the same format as the copy
of Ruby's will produced in court.  Both wills essentially make specific bequests and then
leave the remainder to the spouse, unless that spouse dies first, and then assets are devised
to the children and stepchildren.  One of the subscribing witnesses and the notary public
identified the copies of signatures on both wills, and explained why the copy appeared to be
an accurate photocopy.  The circumstances, including Spain's actions after telling Luther,
Jr. she had her mother's will, indicate the copy offered at trial was the same as the original
will.  	The probate court found the 1983 will had not been revoked.  See Tex. Prob. Code
§ 88(b).  Spain does not specifically challenge this finding on appeal.  If the original will was
last known to be in the testator's possession, failure to produce the original after the testator's
death would raise a presumption the testator destroyed the will with the intent of revoking
it.  Hibbler v. Knight, 735 S.W.2d 924, 927 (Tex. App.--Houston [1st Dist.] 1987, writ ref'd
n.r.e.); Berry v. Griffin, 531 S.W.2d 394, 395 (Tex. Civ. App.--Houston [14th Dist.] 1975,
writ ref'd n.r.e.).  If a presumption of revocation is established, the proponent of the will
carries the burden of proving that the testator did not destroy the will with the intent to
revoke it.  See O'Brien v. Stanzel, 603 S.W.2d 826, 827 (Tex. 1980).  Proof of circumstances
contrary to the presumption or evidence that some other person fraudulently destroyed the
will may overcome the presumption of revocation; the presumption must be overcome by a
preponderance of the evidence.  See In re Estate of Glover, 744 S.W.2d 939, 940 (Tex.
1988); In re Estate of Caples, 683 S.W.2d 741, 743 (Tex. App.--Corpus Christi 1984, writ
ref'd n.r.e.).  Under the circumstances in this case, the probate court could reasonably
conclude Spain had possession of the original will after her mother's death.  See, e.g.,
McNamara v. Hall, 678 S.W.2d 578, 580 (Tex. App.--Houston [14th Dist.] 1984, no writ)
(granting application for probate of a photocopy of will where the "logical and reasonable
conclusion" was that original was in opposing party's possession.).  Sufficient evidence
supports the finding that Ruby did not revoke the 1983 will.  See Tex. Prob. Code § 88(b). 
 The Exact Photocopy and Section 85

	A reviewing court must uphold a correct trial court judgment on any legal theory
properly before the trial court.  See Guar. County Mut. Ins. Co. v.  Reyna, 709 S.W.2d 647,
648 (Tex. 1986) ("We must uphold a correct lower court judgment on any legal theory before
it, even if the court gives an incorrect reason for its judgment.").  Luther, Jr.'s Amended
Application for Probate of Will did not request probate of the will solely or specifically under
section 85; Luther, Jr.'s application sought probate of the copy of the will.  On appeal, he
requests this Court "affirm the order of the Trial Court admitting to probate the exact
photocopy of the 1983 will of Ruby Jones."  
	When a written will is produced in court, section 85 does not apply; the section
applies only when a written will cannot be produced.  See Tex. Prob. Code Ann. § 85. 
Courts sometimes apply section 85 when an applicant attempts to admit a copy of a will to
probate rather than an original.  See, e.g., Brown v. Traylor, No. 01-04-01091-CV, 2006 Tex.
App. LEXIS 3400 (Tex. App.--Houston [1st Dist.] Apr. 27, 2006, no pet.); Garton v.
Rockett, 190 S.W.3d 139 (Tex. App.--Houston [1st Dist.] 2005, no pet.); see Coulson, 700
S.W.2d  336  (applied section 85 where unsigned copy of the will was offered for probate
and court affirmed trial court's order denying probate because there was no evidence the
alleged lost will was duly executed); Howard Hughes Med. Inst. v. Neff, 640 S.W.2d 942
(Tex. App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.) (applied section 85 where an
unexecuted photocopy of a will was offered for probate and court affirmed trial court's order
denying probate); Fuller v. Sechelski, 573 S.W.2d 587 (Tex. Civ. App.--Houston [1st Dist.]
1978, writ ref'd n.r.e.).  Some courts nevertheless have held under other circumstances a
copy may serve the function of an original will.  See In re Capps, 154 S.W.3d 242
(photocopy of holographic will); see generally Combs v. Howard, 131 S.W.2d 206 (Tex. Civ.
App.--Fort Worth 1939, no writ) (executed carbon copy); see also Bracewell v. Bracewell,
20 S.W.3d 14 (Tex. App.--Houston [14th Dist.] 2000, pet. denied) (holding photocopy of
joint will was properly admitted for probate); Miller v. Miller, 285 S.W.2d 373 (Tex. Civ.
App.--Eastland 1955, no writ).  In Garton v. Rockett, however, the court said, "A party
seeking to probate a copy of a will, rather than the original, must proceed under section 85
of the Probate Code, which provides the requirements for proving a 'written will not
produced in court.'" Id. at 190 S.W.3d at 145.
	The issue before the Garton court was the one argued here, whether the requirement
of proof from a witness who had read the will or heard it read had been met.  See id.  The
court held it had not.  Id. at 147.  The court distinguished Capps because, among other
reasons, "the court in Capps did not directly address the requirement in section 85 that the
contents of a written will not produced in court 'must be substantially proved by the
testimony of a credible witness who has read it or heard it read.'" Garton, 190 S.W.3d at 146. 
The court distinguished Bracewell on the same ground, and for the additional reason that
Bracewell involved a copy of a joint will supported by the testimony of "the surviving
testator."  Garton, 190 S.W.3d at 146-47.  Finally, the Garton court explained that although
Miller held "that a copy of a will raised a fact issue regarding the contents of an alleged 'lost
will,' there was testimony from multiple witnesses who had seen the original lost will and
these witnesses testified that the copies offered for probate were exact copies of the original
or were, 'in substance,' the same as the original."  Garton, 190 S.W.3d at 147.  In holding
that there was no evidence to support the jury's finding that the contents of the will were
substantially proved by the testimony of a credible witness who read the will or heard it read,
the Garton court concluded as follows:  
	In this case, there was no testimony proving the contents of the 'written will
not produced in court' by someone who had read it or heard it read, and there
was no testimony establishing that the copy was an accurate copy of the
'written will not produced in court'. . . . [w]e cannot disregard the plain
language in section 85, which requires the contents of a 'written will not
produced in court' to be proved by the testimony of a credible witness 'who
has read it or heard it read.' 

Id. (citing Tex. Prob. Code Ann. § 85).  

	When a written will cannot be produced in court, and the required proof is provided,
a probate court may determine the contents of a written will from the testimony of a witness
who has read the will or heard the will read.  See Tex. Prob. Code Ann. § 85.  The court
then sets forth the contents of the written will in a written order.  See Tex. Prob. Code Ann.
§ 91.  In those circumstances, the court is essentially relying on what the witness recalls of
the will's contents.  The procedures under sections 85 and 91 presume the court is not
presented with a written will to probate.  
	We do not see the "read it or heard it read" requirement in section 85 as intending to
determine the accuracy of a photocopy of a written will, though under other circumstances
that type of testimony may be necessary to determine the accuracy of a photocopy apart from
any requirement of section 85.  The purpose of section 85, as we see it, is to establish the
contents of a written will not in the custody of the court and that can only be reproduced by
a written order of the probate court based on testimony describing the will's contents.  See
Tex. Prob. Code Ann. §§ 85, 91.  The testimony to support the order must come from a
credible witness who has read the written will or heard it read.  If a writing is an accurate
reproduction of the valid unrevoked written will of the testator, the probate court need not
rely on or require the testimony of a credible witness who testifies from memory regarding
the provisions of the testator's will, because the written terms of the will are before the court. 

 We believe construing section 85 as being inapplicable when an exact photocopy of
a valid, unrevoked will is produced in court follows the statute's plain language.  The Code
Construction Act defines "written" as including "any representation of words, letters,
symbols, or figures."  Tex. Gov't Code Ann. § 311.005(11) (Vernon 2005).  "A will is
generally defined as an instrument by which a person makes a disposition of his property, to
take effect after his death, and which by its own nature is ambulatory and revocable during
his lifetime."  In re Estate of Brown, 507 S.W.2d 801, 803 (Tex. Civ. App.--Dallas 1974, writ
ref'd n.r.e.).  Spain does not argue the 1983 will was revoked.  The exact photocopy of the
valid 1983 will was Ruby's written will. 
 Conclusion

	The evidence sufficiently supports the probate court's findings that Ruby's 1983 will
was valid and met the requirements for a written will under the Probate Code, the will was
not revoked, and the photocopy was an exact reproduction of the original will.  A written will
was produced in court for probate.  Because a written will was produced in court, section 85
does not apply.   See Tex. Prob. Code Ann. §§ 85, 91.  The order admitting Ruby Jones's
written will to probate is affirmed.   


	AFFIRMED.	
							_________________________________
								   DAVID GAULTNEY
									   Justice

Submitted on April 13, 2006
Opinion Delivered July 27, 2006

Before McKeithen, C.J., Gaultney and Horton, JJ.
1. Although Spain's two siblings joined in the notice of appeal, only Spain filed a
brief.   
2. Section 84(a) provides, "If a will is self-proved as provided in this Code, no further
proof of its execution with the formalities and solemnities and under the circumstances
required to make it a valid will shall be necessary."  
3. The rules of evidence generally apply in probate proceedings "so far as practicable." 
Tex. Prob. Code Ann. § 22 (Vernon 2003).  Spain made no objection when the copy was
offered into evidence.  Generally, when a trial court admits a duplicate of an original
document into evidence, the court implicitly rules there is no genuine issue concerning the
authenticity of the original, the copy is an accurate reproduction of the original, and under
the circumstances it is not unfair to admit the copy into evidence.  See Tex. R. Evid. 1001,
1003, 1008.  In the probate of a will, the writing is itself the object of proof.  In reviewing
the record and the probate court's order in this case, however, it is apparent the judge as
trier of fact considered the photocopy an accurate reproduction of a valid original will. 
See Tex. R. Evid. 1008.
4. The Texas Rules of Civil Procedure generally apply to probate proceedings if the
rules are not in conflict with the Texas Probate Code.  See Nass v. Nass, 149 Tex. 41, 228
S.W.2d 130, 131 (1950); Bank of Tex., N.A. v. Mexia, 135 S.W.3d 356, 362 (Tex. App.--Dallas 2004, pet. denied).  Under Texas Rule of Civil Procedure 299a, findings of fact "shall
not be recited in a judgment."  However, if findings are recited in the judgment, and no one
complains or requests findings, and there is no conflict with separately filed findings of fact,
the findings of fact in the judgment should not be ignored on appeal.  See In the Interest of
U.P., 105 S.W.3d 222, 229 n.3 (Tex. App.--Houston [14th Dist.] 2003, pet. denied); In the
Interest of Castillo, 101 S.W.3d 174, 179 (Tex. App.--Amarillo 2003, pet. denied); Hill v.
Hill, 971 S.W.2d 153, 157 (Tex. App.--Amarillo 1998, no pet.); Kondos Entm't, Inc. v.
Quinney Elec., Inc., 948 S.W.2d 820, 826 (Tex. App.--San Antonio 1997) (Duncan, J.,
dissenting), rev'd,  988 S.W.2d 212 (Tex. 1999).  A conflict exists in the case-law concerning
Rule 299a's application.  See, e.g., Frommer v. Frommer, 981 S.W.2d 811, 814 (Tex. App.--Houston [1st Dist.] 1998, pet. dism'd) (holding that if findings of fact and conclusions of law
are recited in a judgment they cannot form the basis of a claim on appeal); Sutherland v.
Cobern, 843 S.W.2d 127, 131 n.7 (Tex. App.--Texarkana 1992, writ denied) (Findings of
fact contained in the body of a judgment may not be considered on appeal and an appellate
court should review the case as one in which no findings of fact were made.).  Even if we
reviewed the case as though no express findings were made, we would presume all necessary
findings to support the order.  See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990);
In the Interest of W.E.R, 669 S.W.2d 716, 717 (Tex. 1984).  
5. Section 91 provides: 
	     If for any reason a written will is not in the custody of the court, or if the
will is oral, the court shall find the contents thereof by written order, and
certified copies of same as so established by the court may be recorded in other
counties, and may be used in evidence, as in the case of certified copies of
written wills in the custody of the court.
6. The law generally does not allow someone in possession of an original document to
complain about its non-production.  See generally Hughey v. Donovan, 135 S.W.2d 265, 266
(Tex. Civ. App.--Galveston 1939, no writ); see also Tex. R. Evid. 1004(d) (original in
possession of opponent). 
