                                 MEMORANDUM OPINION
                                         No. 04-09-00452-CV

                        IN THE ESTATE OF William WHIPPLE, Deceased

                   From the County Court At Law No. 1, Guadalupe County, Texas
                                  Trial Court No. 2006-PC-0274
                             Honorable Linda Z. Jones, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Karen Angelini, Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: December 1, 2010

AFFIRMED

           In the underlying probate proceeding, a jury failed to find that William Whipple executed

a will with all the formalities required to make it a lawful and valid will. John Leslie Whipple,

Jr., the proponent of the will, appeals the probate court’s judgment, challenging the sufficiency

of the evidence and contending that the jury’s answers to two of the questions submitted in the

charge contained an irreconcilable conflict. We affirm the trial court’s judgment.

                                   SUFFICIENCY OF THE EVIDENCE

A. Standard of Review

           In his first issue, John challenges the sufficiency of the evidence to support the jury’s

failure to find that William executed a will with all the formalities required to make it a lawful
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and valid will. “When a party attacks the legal sufficiency of an adverse finding on an issue on

which [he] has the burden of proof, [he] must demonstrate on appeal that the evidence

establishes, as a matter of law, all vital facts in support of the issue.” Dow Chem. Co. v. Francis,

46 S.W.3d 237, 241 (Tex. 2001). “In reviewing a ‘matter of law’ challenge, the reviewing court

must first examine the record for evidence that supports the finding, while ignoring all evidence

to the contrary.” Id. “If there is no evidence to support the finding, the reviewing court will then

examine the entire record to determine if the contrary proposition is established as a matter of

law.” Id. The legal sufficiency challenge “should be sustained only if the contrary proposition is

conclusively established.” Id. at 241–42.

          “When a party attacks the factual sufficiency of an adverse finding on an issue on which

[he] has the burden of proof, [he] must demonstrate on appeal that the adverse finding is against

the great weight and preponderance of the evidence.” Id. at 242. “The court of appeals must

consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak

or if the finding is so against the great weight and preponderance of the evidence that it is clearly

wrong and unjust.” Id. “In doing so, the court of appeals must ‘detail the evidence relevant to

the issue’ and ‘state in what regard the contrary evidence greatly outweighs the evidence in

support of the verdict.’” Id. (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.

1986)).

B. Evidence Presented

          John testified that his father, John Leslie Whipple, Sr., had two brothers, William

Whipple and Raymond Whipple, Jr., and one sister, Phyllis Jill Whipple. William died in

November of 2004, Raymond died in October of 2006, and Phyllis died in January of 2007.




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Richard Cash is one of Phyllis’s children. John testified that he had a close relationship with

both William and Raymond who were like older brothers to him.

       After William discovered that he was terminally ill, he called John in August of 2004,

and asked John to help him draft a will on John’s computer. With John’s help, William drafted a

will naming Raymond as William’s sole beneficiary and John as executor of the estate. William

and Raymond lived together and had never married or had children, so John testified that

William’s naming Raymond as his sole beneficiary was not surprising. In the process of drafting

the will, John called Nile Riedel, a lawyer whose services they had used in the past, and William

read the substantive contents of the will to Riedel. John then printed out two copies of the will.

William took one copy with him, and John put the other copy in a file in his desk drawer. The

unsigned copy of the will John had retained was the will John sought to have admitted to probate

and was introduced into evidence.

       When William died in November of 2004, Raymond requested two death certificates

which were sent to John. In the weeks after William died, Raymond told John that he was not in

any rush to probate William’s will, which could be probated anytime within two years. One

reason Raymond expressed for waiting was a concern that his property taxes could go up.

       In February of 2005, John met with Raymond and brought the two death certificates with

him to the meeting. Raymond brought a manila folder to the meeting containing William’s will.

John testified that the will had been signed by William and by Billy and Bobby Smith as

witnesses. Raymond put one copy of the death certificate in the folder with the will, and John

kept the other copy. John testified that he never pursued probating William’s will because

Raymond was the sole beneficiary, and John did not believe it was his position to force him to

probate.



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       John discovered Raymond dead in his home on a Monday in October of 2006. John had

helped Raymond prepare a will similar to William’s will but naming John as Raymond’s sole

beneficiary. John found Raymond’s will in a file cabinet but did not think to look for William’s

still unprobated will that day. John admitted that if the unsigned copy of William’s will was

admitted to probate, John would inherit all of the assets of both William’s and Raymond’s

estates. John, however, also acknowledged that if William did not have a will, Richard’s mother,

who was still alive at that time, would have been an heir to her brother William’s estate.

       John subsequently returned to Raymond’s home to ensure the property was secure, and

the doors were locked. Rafaye Armstrong, who was a caretaker on Raymond’s property, told

John that she did not have keys to the home. John returned to the property again on Wednesday

or Thursday and discovered that the home was unlocked.

       John testified that on the Thursday after John found Raymond dead, his cousin, Richard

Cash, called and asked if Raymond had a will. John responded that he had possession of

Raymond’s will. When John confirmed that he did, Richard then asked if William had a will,

and John confirmed that he did. Richard then asked if John had possession of William’s will,

and John told him that he was looking for the will. John claimed he was trying to be evasive

because he did not understand the purpose for Richard’s questions. Richard then informed John

that he had removed boxes of documents from Raymond’s property. Richard told John to give

him what he wanted, or he would sue the estate. John testified that Richard stated, “I have the

documents you need, and I can stretch this out for years.” After calling an attorney, John went to

Raymond’s house and searched for William’s will; however, Raymond’s home was extremely

cluttered. Photographs depicting the cluttered condition of Raymond’s home and the buildings




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on his property were introduced into evidence. John testified that he made a diligent search for

the will but was unable to locate it. John testified that he believed Richard had taken the will.

        Richard subsequently called John, stating he intended to take a U-Haul trailer to

Raymond’s property to “start loading stuff up.” John and his father met Richard and allowed

him to remove some family photos. After John offered Raymond’s will for probate, he received

a phone call from Armstrong, informing him that Richard was at Raymond’s property. John

went and confronted Richard, who admitted that he cut a lock to a building. John called the

police, who made Richard leave the property.

        On cross-examination, John stated that he spent several months searching through and

reviewing all of the clutter at Raymond’s property. In December of 2006, two months after

Raymond’s death, John’s father filed an application for the administration of William’s estate.

John testified that an attorney advised them to file the application because Richard had filed an

application. The application stated that William “may” have had a will, but its whereabouts were

unknown. John stated he was unsure why the application said William “may” have had a will

because he told the attorney that William did have a will, and an amended application was

subsequently filed stating that William “had” a will, but its whereabouts were unknown. 1 John

testified that he did not immediately file the unsigned copy of William’s will for probate because

his attorney had instructed him to keep looking for the signed will. John denied not filing the

unsigned copy in order to come up with a plan to account for the location of the signed will.

John also denied the signed will contained less favorable provisions to him than the unsigned

copy he was seeking to have admitted to probate.




1
 John agreed that the amended application was filed on the same day as the application to probate the unsigned
copy of William’s will.

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       There was conflicting testimony at trial concerning John’s delay in probating William’s

will and the executor named in William’s will. During his deposition, John stated the reason he

delayed in probating William’s will was because he initially thought Raymond was named the

executor. At trial, John testified that he knew he was the executor, but delayed in probating the

will because Raymond asked him to wait because of tax issues. John admitted, however, that

one of the subscribing witnesses, Billy Smith, also testified in his deposition that Raymond was

named as executor in William’s will. When asked on cross-examination about the location of the

copy of William’s will that named Raymond as executor, John responded there was no will in

which Raymond was named as executor.

       Nile Riedel had consulted with William about his need for a will and was subsequently

consulted over the phone when John was assisting William in drafting a will. Riedel could not

testify whether he had or had not seen William’s will.

       Subscribing witnesses Bobby Wayne Smith and his brother Billy Smith helped William

and Raymond with remodeling projects, and they were friends.           The Smiths agreed to be

witnesses to William’s will. In August of 2004, Raymond and William went to the Smiths’

house. Raymond had the will in a folder. William thumbed through the will and signed it first.

Raymond told Bobby and Billy that they needed to read the will. Bobby testified that he read the

will before he signed it as a witness, and then handed it to Billy to sign. Bobby recognized the

signature page of the unsigned copy of William’s will because he signed that page and put his

driver’s license number under his signature on the original signed copy.

       On cross-examination, Bobby admitted that he met with John, John’s attorney, and Billy

before his deposition was taken. Bobby testified that he recognized the signature page of the will




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but did not remember the rest of it. Thus, he could not be certain if the unsigned copy of the will

was the same as the will he signed.

       Bobby’s credibility was questioned based on Bobby’s close dealings with John. There

was testimony that in 1998 or 1999, a potential buyer approached Bobby and offered to purchase

his parent’s home from him for $22,000. Although Bobby signed a paper to effectuate the sale,

John helped Bobby get out of the deal when Bobby later decided he did not want to sell the

house to the potential buyer. Bobby subsequently sold the house to John for $30,000.

       Billy Smith testified that William and Raymond went to the Smiths’ house to sign

William’s will in August of 2004. Billy testified that William signed the will first, then Bobby,

then himself.    After signing the will, they put their driver’s license numbers under their

signatures.

       On cross-examination, Billy admitted that he met with John, John’s attorney, and Bobby

before his deposition was taken. Billy admitted that he initially testified in his deposition that he

had never seen a will. At trial, Billy testified that he changed his deposition response because he

meant that he had never seen a will before William’s will. Billy also admitted that he initially

testified in his deposition that he remembered reading in the will that Raymond was named as

executor. At trial, Billy testified that he changed his deposition response because he only

assumed Raymond was the executor. Billy further admitted at his deposition that he would not

be able to identify the document that he witnessed unless his signature was on it. At trial, Billy

testified that he vaguely remembered the signature page of the unsigned copy of William’s will

as something he had seen. Billy admitted that he never testified in his deposition that he wrote

his driver’s license under his signature. At trial, Billy testified that he and Bobby independently

recalled writing their driver’s license numbers under their signatures while they were reviewing



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their deposition transcripts in preparation for trial. Billy admitted that he had spoken with John

about the deposition on and off since the deposition was taken in September of 2008.

       James Udkler interacted with William approximately two or three times, but Udkler and

Raymond were very good friends. Udkler testified that he was at Raymond’s property working

on a backhoe with another person and overheard Richard requesting that Raymond pay him

$3,000.00 per month. Raymond looked shocked and walked Richard away from Udkler and the

other person. Udkler recalled the other person remarking they were only getting paid $10.00 an

hour. Udkler also recalled Raymond receiving a cell phone call from Richard one evening while

Raymond was at Udkler’s house. Udkler recalled that Raymond became upset and lost all color

in his face. Udkler testified that he recognized Richard’s voice as the caller and overheard

Richard cursing at Raymond. Udkler testified that he and Raymond were making plans to go to

Mexico after Christmas in 2006. One day, Udkler stopped by Raymond’s house and asked if he

was preparing for the trip. Raymond went inside and returned with a folder containing some

papers. Raymond told Udkler that he had to take care of the papers before he went to Mexico.

Udkler testified that he read the documents in the folder which consisted of William’s will and a

death certificate. The will had the signatures of William, Bobby, and Billy. Udkler recalled that

Raymond returned to his home with the folder as Udkler was leaving. Udkler testified that the

unsigned copy of the will was the same as the signed will he saw that day.             On cross-

examination, Udkler testified that he mentioned seeing William’s will when he met with John

and his attorney to discuss going to court in regard to Raymond’s will because Udkler was a

subscribing witness on that will.

       Richard testified that he was in the United States Air Force from 1993 to January of

2006. Raymond died approximately ten months after Richard returned to San Antonio. Richard



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testified that he did not know whether William had a will or not. Between January of 2006 and

October of 2006 when Raymond died, Richard visited Raymond on three or four occasions. On

one occasion, Raymond took Richard into various buildings on the property looking for property

belonging to Richard’s mother, Phyllis. Richard testified that he saw an antique telephone chair

and a bench stool that belonged to his mother.

       After Raymond died, Richard showed up at an investment office with a copy of

William’s death certificate. Richard stated that he obtained the death certificate from his mother

after they discussed the need to probate William’s estate. Richard stated that he believed his

mother would inherit from William; however, Richard admitted that his mother would not have

inherited anything from William if the unsigned copy of the will was William’s actual will.

Richard applied to be the representative of William’s estate in November of 2006 because his

mother asked him to take care of it. His mother was concerned that her personal property located

on Raymond’s property would be in jeopardy. When Richard asked John about the property

belonging to Richard’s mother, John told him it was property of Raymond’s estate.

       Richard denied taking William’s will from Raymond’s property or threatening John

about Raymond’s estate. He testified that he went to Raymond’s property three times after

Raymond’s death. On the first occasion, he and his sister removed a box of photographs that

included wedding photographs of Richard’s mother and father. The second time, Richard did not

remove anything. The third time, Richard took a 13-page handwritten letter his mother had

written, and a letter she received from a school board. Richard stated that he believed he could

go to the property because he was an heir to the property and was looking for his mother’s

belongings. Richard admitted cutting a lock to one of the buildings, but testified that John had

stated he had no keys to the building and told Richard he was free to try to gain access.



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       Armstrong and her husband were the caretakers for Raymond’s property. Armstrong

testified that Richard and his sister came to the property after Raymond died, stating that they

were going to look through their mother’s things. Armstrong pointed out a horse trailer where

their mother’s things were stored. Armstrong saw Richard and his sister leaving with a painting

and a box that contained papers and a photo album. Armstrong stated that they began having

trouble with the front door to Raymond’s home not locking properly after Richard and his sister

had visited the property.

C. Analysis and Conclusion

       John contends the evidence conclusively established that William executed a duplicate

copy of the unsigned will that was being offered for probate. The jury question at issue asked

the following:

       Question No. 1

              Do you find from a preponderance of the evidence that William Whipple
       executed a will with all of the formalities required to make it a lawful and valid
       will?

                 Answer “Yes” or “No”

                 WE THE JURY ANSWER:          No

                 INSTRUCTION:

       You are instructed that all of the formalities required by law to make a valid Will
       are as follows:

       1.   The Will must be in writing,
       2.   The testator must be 18 years of age or older,
       3.   The testator must personally sign the Will; and
       4.   The Will must be attested by two or more credible witnesses above the age of
            14 years who each subscribe their name to the Will in their own handwriting
            in the presence of the testator. There is no requirement that the witnesses sign
            in each other’s presence.




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TEX. PROB. CODE ANN. § 59 (West 2003) (listing same requisites of will as set forth in jury

question). 2

        In reviewing John’s contention that the evidence is legally and factually insufficient to

support the jury’s failure to find that a will was executed with all formalities, we must be

cognizant of our role as a reviewing court. “Jurors are the sole judges of the credibility of the

witnesses and the weight to give their testimony.” City of Keller v. Wilson, 168 S.W.3d 802, 819

(Tex. 2005). “They may choose to believe one witness and disbelieve another. Reviewing

courts cannot impose their own opinions to the contrary.” Id.

        The jury in the instant case was presented with a copy of an unsigned will. Although the

jury was presented with testimony that William and two witnesses had signed the will, the

evidence presented numerous credibility challenges that the jury was required to resolve.

        The first document filed by John’s father in connection with William’s estate was an

application stating that William “may” have had a will. The application was subsequently

amended to state William “had” a will at the same time the unsigned copy of the will was offered

for probate. John testified that he would inherit all of the assets of both estates if the unsigned

copy of the will was admitted to probate. From the evidence presented, the jury was required to

weigh the credibility of the testimony regarding the conflict in the applications, and the delay in

offering the unsigned copy of the will for probate.

        The unsigned copy of the will named John as executor. In his deposition, John initially

testified that Raymond was named the executor of William’s will and gave this as his reason for

not proceeding with the probate of William’s will. Billy similarly testified that Raymond was

2
 The jury also was asked whether the executed will could not be produced in court because it was taken or lost and
could not by reasonable diligence be produced. The jury answered “no.” See TEX. PROB. CODE ANN. § 85 (West
Supp. 2010) (providing if a written will cannot be produced in court, the proponent must prove the cause of its non-
production, reasonable diligence was used to produce the will, and the will’s contents). Finally, the jury was asked
whether the unsigned copy of the will offered for probate by John was William’s will. The jury answered “no.”

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named as the executor of the will. Although the testimony of both witnesses changed at trial, the

jury was required to evaluate the credibility of the witnesses and determine whether a signed will

had existed in which William named Raymond as executor.

       Both Billy and Bobby testified that they remembered the signature page of the unsigned

copy of the will but not the remaining contents of the document. During their depositions,

neither Billy nor Bobby testified that they had written their driver’s license numbers under their

signatures.   At trial, they both recalled writing their driver’s licenses numbers under their

signatures as a reason for recalling the signature page. Billy denied that he had discussed this

issue with Bobby before trial but testified that both Billy and Bobby had independently recalled

writing their driver’s license numbers while reviewing their depositions. Billy also testified at

his deposition that he had never seen a will, but amended his answer to state that he had never

seen a will other than William’s will. The jury was required to evaluate Billy’s and Bobby’s

credibility in order to determine whether William’s will was properly witnessed.

       The jury was also required to evaluate the context in which Udkler testified that he saw

William’s executed will. Udkler testified that Raymond showed him the will as an item he

needed to resolve before going on a trip to Mexico. Udkler testified that he informed John and

his attorney about seeing William’s executed will during a meeting in preparation for his going

to court as a witness to Raymond’s will. Udkler initially testified that he mentioned seeing

William’s executed will in response to a question by John’s attorney, but later testified that he

spontaneously informed John and his attorney about seeing William’s will. The jury also had to

evaluate the credibility of Udkler’s testimony by considering his uncorroborated testimony

regarding Richard making monetary demands on Raymond and cursing him, which appeared to

be an effort by Udkler to portray Richard in a negative light.



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       Having reviewed the testimony as a whole and deferring to the jury’s right to assess the

credibility of the witnesses’ testimony and to accept or reject any witness’s testimony, we

conclude the evidence was legally and factually sufficient to support the jury’s finding. After

evaluating the witnesses’ credibility and deciding which witnesses to believe, the jury could have

determined that the unsigned copy of the will presented for probate had not been signed by

William or was not attested to by two credible witnesses who subscribed their name to the will.

                                 CONFLICTING JURY ANSWERS

       In his second issue, John contends that the jury’s answers to two questions were

conflicting. In his brief, Richard asserted that John did not preserve this complaint for appellate

review because he did not raise any contention concerning conflicting jury findings before the

jury was discharged. See Beard v. Comm’n for Lawyer Discipline, 279 S.W.3d 895, 904 (Tex.

App.—Dallas 2009, pet. denied); Medistar Corp. v. Schmidt, 267 S.W.3d 150, 162 (Tex. App.—

San Antonio 2008, pet. denied). We agree with Richard. After the trial court read the jury’s

verdict, the trial court asked if anybody was “requesting anything else at this time.” John’s

attorney responded, “No, your honor.”        Because no objection was made with regard to

conflicting jury answers before the jury was discharged, we overrule John’s second issue. See

Springs Window Fashions Div., Inc. v. Blind Maker, Inc., 184 S.W.3d 840, 866–67 (Tex. App.—

Austin 2006, pet. granted, judgm’t vacated w.r.m.) (holding complaint that jury’s answers fatally

conflicted was waived absent timely objection before jury was discharged).

                                          CONCLUSION

       The trial court’s judgment is affirmed.

                                                    Rebecca Simmons, Justice




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