                                      In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                                _________________
                                NO. 09-14-00345-CV
                                _________________

                IN THE ESTATE OF LESSIE MAE BURRELL
________________________________________________________________________

                      On Appeal from the 1st District Court
                            Jasper County, Texas
                            Trial Cause No. 33165
________________________________________________________________________

                              MEMORANDUM OPINION

      The appellants, Chance Burnett, Clark Burrell, Phyllis Ingham, and Kelly

Pender, challenge the trial court’s order admitting a copy of Lessie Burrell’s Last

Will and Testament to probate. In three issues, the appellants challenge the legal

and factual sufficiency of the evidence to support the trial court’s order. We affirm

the trial court’s judgment.

                                   Background

      On January 24, 1997, Lessie Burrell (the decedent) executed a will leaving

Vada Burnett, her daughter, the sum of $1.00. She left the residue of her estate to

Lessie Nance, the appellee herein, and the decedent’s granddaughter, whom she
                                         1
also named the Independent Executrix of the will. The decedent died on January

19, 2013 at the age of 93. At the time of her death, the decedent’s four children had

predeceased her, and she was survived by seven grandchildren. Because Nance

could not locate the decedent’s original will after she died, Nance filed an

application to probate a copy of the decedent’s will and alleged that the original

will had been misplaced. The appellants, some of the decedent’s grandchildren and

one great-grandchild, filed an opposition to the probate of the copy of the

decedent’s will, alleging that prior to her death, the decedent revoked the will by

physically destroying it.

      After a hearing on Nance’s application, the trial court signed an order

admitting the copy of the will to probate and authorizing letters testamentary. The

court found that Nance’s allegations were true, that the decedent executed a will,

and that the will was not produced in court because it had been lost or misplaced.

The court found that the decedent did not revoke the will and that the will was

entitled to be admitted to probate. Upon the appellants’ request, the trial court also

issued findings of fact and conclusions of law. Therein, the trial court specifically

found that the decedent did not revoke the will, that Nance exercised reasonable

diligence in attempting to produce the original will but was unable to do so

because it had been lost or misplaced, and that the copy of the will offered for

                                          2
probate was a true and correct copy of the decedent’s original will executed in

1997. The appellants filed a motion for new trial, which was overruled by

operation of law. Thereafter, the appellants filed a notice of appeal with this Court.

                                Standard of Review

      In an appeal from a judgment rendered after a bench trial, we will review the

trial court’s findings of fact for legal and factual sufficiency of the evidence using

the same standards that are applied in reviewing a jury’s findings. Catalina v.

Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When an appellant attacks the legal

sufficiency of an adverse finding on an issue on which the appellant did not have

the burden of proof, the appellant must demonstrate that no evidence supports the

finding. See Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex.

2011). The appellate court will sustain a legal sufficiency challenge if the record

shows a complete absence of evidence of a vital fact, rules of law or evidence bar

the court from giving weight to the only evidence offered to prove a vital fact, the

evidence offered to prove a vital fact is no more than a scintilla, or the evidence

establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168

S.W.3d 802, 810 (Tex. 2005) (quoting Robert W. Calvert, “No Evidence” &

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)). In a

legal sufficiency review, we “must consider evidence in the light most favorable to

                                          3
the verdict, and indulge every reasonable inference that would support it.” Id. at

822. We will not substitute our judgment for that of the trier of fact as long as the

evidence falls within the zone of reasonable disagreement. Id.

      In evaluating a factual sufficiency (insufficient evidence) challenge, we

consider and weigh all of the evidence, not just the evidence that supports the

finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998). If the

challenging party did not have the burden of proof at trial on the challenged

finding, then we will “set aside the verdict only if the evidence that supports the

finding is so weak as to make the verdict clearly wrong and manifestly unjust.”

City of Austin v. Chandler, 428 S.W.3d 398, 407 (Tex. App.—Austin 2014, no

pet.) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam)). The trial

court is the sole judge of the witnesses’ credibility in a bench trial, it may choose to

credit or discredit one witness over another, and the appellate court may not

impose its own opinion to the contrary. See Golden Eagle Archery, Inc. v. Jackson,

116 S.W.3d 757, 761 (Tex. 2003); Woods v. Woods, 193 S.W.3d 720, 726 (Tex.

App.—Beaumont 2006, pet. denied); In re Estate of Jones, 197 S.W.3d 894, 900

(Tex. App.—Beaumont 2006, pet. denied). We review a trial court’s conclusions

of law as a legal question. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d

789, 794 (Tex. 2002).

                                           4
                           Sufficiency of the Evidence

      The appellants argue the evidence is legally and factually insufficient to

support the trial court’s order. Specifically, the appellants contend there was

insufficient evidence to overcome the presumption that the decedent revoked her

will and that unrebutted evidence shows that she physically destroyed the will prior

to her death. The appellee contends that she has met her burden under the Texas

Probate Code, which was in effect at the time she commenced her proceedings

herein.1 See Act of March 17, 1955, 54th Leg., R.S., ch. 55, § 85, 1955 Tex. Gen.

Laws 88, 116-17, amended by Act of May 15, 2007, 80th Leg., R.S., ch. 1170, art.

6, 2007 Tex. Gen. Laws 4000, 4006, repealed by Act of May 26, 2009, 81st Leg.,

R.S., ch. 680, 2009 Tex. Gen. Laws 1512, 1609-1610. Section 85 of the Texas

Probate Code provides:

      1
        Effective January 1, 2014, the Legislature repealed the Texas Probate Code
and recodified it as the Texas Estates Code. See Act of May 26, 2009, 81st Leg.,
R.S., ch. 680, 2009 Tex. Gen. Laws 1512, 1512–1732 (§§ 10–12 reflect the
effective date of the Texas Estates Code and the repeal of the Texas Probate Code),
amended by Act of May 19, 2011, 82nd Leg., R.S., ch. 823, 2011 Tex. Sess. Law
Serv. 1901, 1901–2095 (West); Act of May 9, 2013, 83rd Leg., R.S., ch. 161, art.
6, 2013 Tex. Sess. Law Serv. 623, 633–657 (West). Nance filed her application for
probate of the will on April 19, 2013, before the effective date of the Legislature’s
revisions. See Act of May 24, 2013, 83rd Leg., R.S., ch. 1136, § 62(d), 2013 Tex.
Sess. Law Serv. 2740, 2757 (West) (providing that the former law is continued for
actions filed or otherwise commenced before January 1, 2014 for certain
provisions of the Texas Estates Code, including the provision governing proof
required for a will not produced in court).
                                          5
      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 the will, has heard the will read, or can identify a copy of the
      will.

Id. (hereinafter referred to as “Tex. Prob. Code § 85”). Section 85 requires that a

proponent of a copy of a will satisfy the requirements of section 84 of the Texas

Probate Code. Id. Section 84 provides different methods to prove an attested will

that is physically produced in court, including that the sworn testimony or affidavit

of one or more of the subscribing witnesses to a will may serve to prove the proper

execution of the will. See Act of March 17, 1955, 54th Leg., R.S., ch. 55, 1955

Tex. Gen. Laws 88, 116 (repealed 2009) (hereinafter referred to as “Tex. Prob.

Code § 84”). The third requirement of section 85 is that the proponent substantially

proves the contents of the will by the testimony of a credible witness who has read

the will, has heard the will read, or can identify a copy of the will. Tex. Prob. Code




                                          6
§ 85. The parties do not contest that the copy of the will presented to the trial court

was an actual copy of the decedent’s will and that it was properly executed. 2

      The appellants do not directly challenge the second requirement of section

85, which specifies that the proponent of the copy of the will must prove the cause

of the will’s non-production and that such cause must be sufficient to satisfy the

trial court that the will cannot by any reasonable diligence be produced. See id. §

85. However, by claiming that the will was not lost but rather destroyed, the

appellants indirectly challenge this finding. The statute provides that the proponent

of a will satisfies this burden by showing by a preponderance of the evidence that
      2
          The subscribing witnesses to the decedent’s will did not testify at the
hearing. However, the record reflects that the attorney representing the parties
opposing the will was also the attorney that prepared the will for the decedent,
orchestrated its execution, and was designated in the will as the alternate executor.
We further note that the will included a self-proving affidavit witnessed by the
same people that witnessed the will. Under these circumstances, we hold there
were sufficient facts to satisfy the court that the testator executed the will with the
formalities and solemnities required by law to make the will valid. See Jones v.
Whiteley, 533 S.W.2d 881, 883 (Tex. Civ. App.—Fort Worth 1976, writ ref’d
n.r.e.); see also Massey v. Allen, 248 S.W. 1067, 1069 (Tex. Comm’n App. 1923,
judgm’t adopted) (interpreting predecessor of section 84 and holding that the
provision relating to proof of the will in court “only furnishes a guide under the
conditions stated in the statute” and that other methods of proof may, in some
circumstances, be used); Hopf v. State, 10 S.W. 589, 592 (Tex. 1888) (providing
that a defect in memory or a corrupt purpose preventing a subscribing witness from
being unable to testify as to the facts bearing on the execution of the will should
not be permitted to defeat the will if other admissible evidence establishes facts
sufficient to satisfy the court that “the testator executed the will with the
formalities and solemnities and under the circumstances required by law to make a
valid will.”)(internal quotation omitted).
                                           7
the original will could not be located after a reasonably diligent search. See id.

There is no requirement that the proponent establish the manner in which the

original will was lost. See In re Estate of Catlin, 311 S.W.3d 697, 700-01 (Tex.

App.—Amarillo 2010, pet. denied).

      The trial court heard testimony that the decedent placed the will in a

fireproof safe along with other legal papers and some old family photographs.

Some of the appellants testified that they knew that the decedent had a will and

knew that Nance was the only beneficiary under the will. The court heard

testimony that the decedent was not in her home before her death, having spent

time in a hospital and ultimately passing away in hospice care at a facility in

another town. After the decedent’s death, Nance found the fireproof safe at the

decedent’s house, but the safe had been left open and had been emptied. Nance

testified that she was unable to locate any of the papers that she watched the

decedent place in the safe and was unable to find the keys to the safe. Nance

testified that she believed finding the safe in this condition was “unusual[.]” There

are different inferences that could be drawn from the testimony and evidence,

including that someone located the keys to the safe while the decedent was out of

her home and emptied the contents of the safe, including the will.



                                         8
      The appellants argue that the will is missing not because someone removed

it from the safe, but because the decedent destroyed it. The appellants specifically

challenge the trial court’s finding that the decedent did not revoke the will. They

argue that the appellee has not met her burden under section 88 of the Texas

Probate Code requiring her to prove that the decedent did not revoke the will, that

there is a presumption that the decedent revoked the will, that the appellee has

presented no evidence to overcome that presumption, and that the appellants

presented uncontroverted proof that the decedent revoked the will by destroying it.

      Section 88 of the Texas Probate Code provides that whenever an applicant

seeks to probate a will, the applicant must prove to the satisfaction of the court a

number of factors, including that the will was not revoked by the testator. See Act

of March 17, 1955, 54th Leg., R.S., ch. 55, § 88, 1955 Tex. Gen. Laws 88, 117,

amended by Act of May 22, 1969, 61st Leg., R.S., ch. 641, sec. 8, 1969 Tex. Gen.

Laws 1922, 1925, repealed by Act of May 26, 2009, 81st Leg., R.S., ch. 680, 2009

Tex. Gen. Laws 1512, 1608, 1617-1618 (hereinafter referred to as “Tex. Prob.

Code § 88”).3 When an original will is lost but was last seen in the testator’s

      3
        As previously explained, the Legislature repealed and recodified the Texas
Probate Code as the Texas Estates Code. The legislation enacting the Texas Estates
Code provides expressly that it is intended as a recodification only and that no
substantive changes in the law was intended. See Act of May 26, 2009, 81st Leg.,
ch. 680, § 1, 2009 Tex. Gen. Laws 1512, 1512.
                                        9
possession, a rebuttable presumption arises that the testator destroyed the will with

the intention of revoking it. Brown v. Traylor, 210 S.W.3d 648, 662 (Tex. App.—

Houston [1st Dist.] 2006, no pet.); see McElroy v. Phink, 76 S.W. 753, 753 (Tex.

1903) (explaining the proposition that “where a will which, when last seen, was in

the custody of the testator, cannot be found after his death, a presumption arises

that it has been revoked” because “it is a reasonable inference from the facts that

the custodian, who in such case is the testator, has destroyed it for the purpose of

revoking it”). The proponent of the copy of the will must overcome this

presumption by a preponderance of the evidence. In re Estate of Glover, 744

S.W.2d 939, 940 (Tex. 1988) (per curiam). The proponent of the will can

overcome the presumption by presenting evidence of circumstances contrary to the

presumption or evidence that someone else fraudulently destroyed the will. Brown,

210 S.W.3d at 662; see also In re Estate of Capps, 154 S.W.3d 242, 245 (Tex.

App.—Texarkana 2005, no pet.). “The testimony of a witness that, to her

knowledge or belief, the testator did not revoke the will has been held sufficient

evidence of nonrevocation to support probate of the will.” Capps, 154 S.W.3d at

245.

       Nance testified that the decedent lived on a 12-acre tract of land. In the late

nineties, the decedent deeded Nance and her husband an acre of the property, so

                                         10
they moved their house onto the property. Because of the decedent’s age she

needed help, so Nance, Nance’s husband, and their daughter, Cassey, helped to

care for the decedent. Nance estimated that she would see the decedent daily,

sometimes two to three times a day. Nance testified that generally the decedent

took care of her own business and was a meticulous bookkeeper, maintaining and

organizing important documents. Nance recalled that in the last few years of the

decedent’s life, she would get confused to the point where she needed extra

attention. Nance testified that two of the appellants, Burnett and Burrell, lived

within five or six miles of the decedent but did not help with the decedent’s care in

her later years. Since the decedent’s death, Nance has continued caring for the

decedent’s estate.

      Nance recalled a time when the decedent wanted to sell her property. During

the process of trying to sell the decedent’s property, it was discovered that Nance’s

house sat on the decedent’s property boundary line, which may have caused the

potential buyer to opt out of purchasing the decedent’s property. Nance denied that

this situation caused any discord in her relationship with the decedent. She

explained that she continued to live next door and care for the decedent. Nance

testified that the decedent never told her that she revoked the will or otherwise

burned or destroyed it.

                                         11
      Nance’s daughter, Cassey, also testified. Cassey testified that she is the

decedent’s great-granddaughter. Up until the last three months of the decedent’s

life, Cassey helped care for the decedent on a daily basis for several years. She

testified that her mother and father helped care for the decedent as well. Cassey

corroborated her mother’s testimony regarding the property boundary issue and

testified that she was unaware of any kind of conflict or discord that developed

between the decedent and Nance over it. Cassey testified that Nance never stopped

assisting in the decedent’s care and that the appellants did not help care for the

decedent. Cassey testified that the decedent never told her she revoked or

destroyed the will, and she had no reason to believe that had been done.

      Nance’s husband, David, testified that he helped maintain the decedent’s

property after her husband died and as the decedent aged. He testified that one of

the appellants helped once or twice with some of the mowing over the years. David

testified he had no knowledge that the decedent revoked or otherwise destroyed her

will. David also denied that the boundary issue with the property caused any

conflict or discord between Nance and the decedent.

      The only person to testify that he knew of an act of revocation was the

decedent’s grandson, Burrell. Burrell recalled that when the decedent discovered

that Nance’s house crossed the decedent’s property line, the decedent became

                                        12
upset. Burrell testified that he accompanied the decedent to her attorney’s office to

discuss the encroachment. He testified that the decedent appeared quite angry at

the attorney’s office. Burrell testified that after the visit to the attorney’s office, the

decedent retrieved her will and then burned it while standing in her chicken yard.

He explained that he drove up one day and the decedent was in the chicken yard,

and he observed her light a match and burn a bunch of papers with a blue covering.

Burrell testified that Audrey Mae Moss was with him. He testified that he told

some of his family members what he had observed. It was his opinion that the

decedent did not appear confused or unaware of what she was doing.

       However, during cross-examination, Burrell admitted to making statements

in his answers to interrogatories that conflicted with his testimony that the

decedent revoked her will because she was mad about the property boundary issue.

He stated in his answers to interrogatories that the decedent revoked her will

because Nance “was not doing the things she promised [the decedent] that she

would do in helping take care of her.” He also admitted that in his answers to

interrogatories, he stated that his wife, not Audrey Mae Moss, was present when

the decedent burned the will.

       There is testimony to support that Burrell had a troubled relationship with

the decedent. Burrell testified that in the last two years of the decedent’s life he

                                            13
only spoke to her off and on, stating “we didn’t talk.” Nance testified that the

decedent purchased furniture for Burrell and, at the time of her death, still owed

$972 on the note. According to Nance, the decedent also co-signed a note to

purchase a tractor for Burrell, but when Burrell stopped paying for the tractor, the

decedent eventually let the tractor get repossessed because she could not continue

to pay for it. Burrell explained that the decedent bought him furniture as a house

warming gift, but he was unaware she was still paying on the debt. Regarding the

tractor debt, Burrell contends the decedent took the tractor away from him because

he missed one or two payments and sold it to someone else. Burrell recalled that

the decedent paid the down payment on the tractor for him, but he claims that he

repaid her.

      Regarding Burrell’s testimony that he saw the decedent burning her will,

Burrell testified that he cannot read or write, and as such, admitted he did not

actually read the papers he claimed he saw the defendant burn. Burrell admitted

that he did not know for certain that the decedent was burning her will. He

testified, “All I know is it was blue with a blue piece of paper around it with papers

inside of it.” Burnett, the decedent’s grandson, testified that Burrell told him that

the decedent had burned her will, but that he had no personal knowledge that the

decedent destroyed her will. Lindsey, another granddaughter of the decedent,

                                         14
testified that she did not go see the decedent. She recalled that Burrell told her that

he saw the decedent burn the will, and she did not believe he would be dishonest in

his testimony.

      There is circumstantial evidence in this record to rebut the presumption of

revocation of the decedent’s will. The safe in the decedent’s home was found open

with all of its contents removed and the keys missing, after the decedent had been

away from the home due to her illness for a length of time. Compare Capps, 154

S.W.3d at 244–46 (holding evidence sufficient to overcome presumption of

revocation when original will was not found in the metal box in which decedent

kept important documents, but decedent had given a copy of the will to the major

devisees referenced in the will, had publicly announced her intentions regarding

her property disposition, and continued to have affection for devisees named in the

will, that she did not tell anyone a contrary intention regarding her disposition

despite being the type of person who would have informed others if she revoked or

changed her will), with Mingo v. Mingo, 507 S.W.2d 310, 312–13 (Tex. Civ.

App.—San Antonio 1974, writ ref'd n.r.e.) (holding insufficient evidence to

overcome the presumption of revocation when there was evidence that the will was

kept in a bank safety deposit box with strict and recorded access and an inventory

of the safety deposit box after decedent's death did not reveal will)

                                          15
      The trial court was free to disbelieve Burrell’s testimony regarding the

revocation of the will, especially in light of his inconsistent statements regarding

the event. Moreover, the evidence is undisputed that Nance and her daughter were

the decedent’s main caregivers. The evidence also shows that Nance and the

decedent continued to have a good, loving relationship up until the decedent’s

death. Nance testified that the decedent never told her that she revoked the will or

otherwise burned or destroyed it.

      Viewing the evidence in the light most favorable to the trial court’s findings

and indulging every reasonable inference that would support them, we conclude

that the trial court could have reasonably concluded that the decedent did not

revoke her will. See In re Estate of Perez, 324 S.W.3d 257, 261-62 (Tex. App.—El

Paso 2010, no pet.). Weighing all the evidence, we conclude the evidence

supporting the trial court’s finding that the decedent did not revoke her will is not

so weak as to be clearly wrong or manifestly unjust. See City of Austin v.

Chandler, 428 S.W.3d 398, 407 (Tex. App.—Austin 2014, no pet.). We conclude

the evidence is legally and factually sufficient to support the trial court’s finding

that the decedent did not revoke her will. Accordingly, we overrule the appellants’

three issues and affirm the trial court’s judgment.



                                         16
      AFFIRMED.



                                            ______________________________
                                                   CHARLES KREGER
                                                        Justice

Submitted on July 31, 2015
Opinion Delivered September 22, 2016

Before McKeithen, C.J., Kreger and Horton, JJ.




                                       17
