             .      . .




                                  April   15, 1957


Hon. J. 0. Duncan                         ww-95
District-County   <Attorney
Upshur     County                         Re:     Whether   or    not a certain     1953
Gilmer,     Texas                                 will can be     probated,    or if it is
                                                  a legal will    subject    to being
                                                  probated;  or    whether     or not the
Dear   Mr.       Duncan:                          property  is    subject   to escheat.

                   You request    the opinion  of this office upon the questions
presented        in your letter   of March    29, 1957, which is as follows:

               “I would like to have your opinion         based upon
       the following     facts:    John Doe made a will ln 1953
       and subsequent       thereto.   in the year   1956, he made
       another    will  to his then living     wife.   She died on
       February      6, 1957, leaving     three children   by a
       previous     marriage.      On March     11, 1957 John Doe
       died without     issue.     He has no living brothers     or
       sisters    o,r children.

              “It is my opinion      that the 1956 will lapsed
       when his wife died.        Then it presents    a question as
       to whether    or not the making      of the 1956 will had
       the effect   of cancelling    or causing   the 1953 will to
       lapse.

               *It is my desire     to know whether      or not the
       1953 will could be probated         or if it is a legal will
       subject    to being probated;     or whether    or not his
       property     is subject   to escheat.    In other words,     it
       may become        my duty for and in behalf of the State
       of Texas      to take action   to have his property     pass
       to the State under our escheat         law. *

               We shall assume        certain facts    in the absence    of more
specific   information.    First,    we assume      that the will of 1953 was
revoked   by the subsequent       will of 1956 in the manner        prescribed
by statute;    that is, V.A.T.S.    Probate   Code, f63, which reads         as
follows:

               “No will     in’ writing,  and no clause       thereof   or
       devise    therein,    shall be revoked,       except  by a sub-
       sequent    will,   codicil,    or declaration     in writing,  executed
       with like formalities,         or by the testator     destroying    or
       canceling     the same,      or causing     it to be done in his
       presence .*
                                                                    . .   -




Hon.   J. 0.   Duncan,    page    2 (WW-95)




This    section  of the Probate   Code        is merely    a re-enactment        of
Article    8285, Vernon’s   Annotated         Civil Statutes.

                A will may not be revoked          in any other manner         than
that prescribed       by the foregoing    provislon    of the Probate      Code.    In
other words,       a will may be revoked       only by the execution         of a sub-
sequent    will   in writing   executed  with like formalities        as the will
sought to be revoked,         or by the testator     destroying    or canceling     the
same or causing         it to be done in his presence.          Ragland    v. Wagener,
142 Tex.     651, 180 S.W.2d 435 (1944).          If we be correct       in our
assumption      that the 1956 will revoked        the 1953 will in the manner
prescribed      by the statute,    then we can put aside the 1953 will with-
out further     notice.

               This brings    us to the consideration          of the subsequent     or
the 1956 will which we assume            was in writing       and executed     with the
necessary    statutory   prerequisites       to make it a valid will.         We
assume    that the 1956 will bequeathed           the entire    estate,   both real and
personal,   to the wife without       limitation    or remainder        to anyone.   If
this be true, the bequest       lapsed upon the death of the wlfe prior              to
the death of the husband, the testator.              Logan v. Thomason,         146 Tex.
37, 202 S.W.2d 212 (1947).          Thea in that event the husband died
intestate  and his property       would descend        according    to the law of
descent   and distribution    as provided        in V.A.T.S.     Probate    Code, 338.

                 You state in your letter         that the testator    died “without
issue *.     We assume      that you mean by this “without           children”,        Died
‘?without issue”      is not the same as saying          &died without      heirs”.
Only if the testator      died without      living heirs     is his estate     subject     to
escheat.       We are not justified      in concluding     from your letter         that the
testator     died without    heirs,  even though he died without           leaving
brothers      and sisters    or children.       The foregoing     constitutes     the most
satisfactory      answer  we can give you in the absence             of more       specific
information.


                                     s UMMARY
               A prior      will may be revoked            only by the
               execution      of a subsequent         will or declara-
               tion in writing      executed      with the same
               formalities      or by destroying          or canceling
                the same or causing          it to be done in the
                presence     of the maker.          If the sole
               beneficiary      of an estate      under a will,
               without     any qualification,      limitation     or
                remainder,      dies prior     to the test&or,
                such an estate       lapses,    resulting      in the
                testator    dying intestate      and the estate
Hon.     3. 0.    Duncan,      page   3 (WW-95)



                  passes     under the law of descent
                  and distribution      as, provided      in
                  V.A.T.S.     Probate     Code, 838.
                  Property     of a person      who dies
                  intestate,    leaving   no living    heirs
                  is subject     to es&eat.      Articles
                  7272-3289,      Vernon’s    Civil Statutes.

                                            Very     truly   yours,

                                            WILL     WILSON
                                            Attorney    General




                                                   Assistant

LPL:cs

APPROVED:

OPINION          COMMITTEE

H. Grady         Chandler,     Chairman

Arthur     Sandlin

Richard     Stone

B. H.     Timmins,       Jr.

REVIEWED    FOR THE ATTORNEY                       GENERAL
BY:
       Geo. P. Blackburn
