Jones v. Jones

630 S.W.2d 645, 1980 Tex. App. LEXIS 3473

Opinion

CARVER, Justice.

Dorothy D. Jones sought to probate a will of her deceased husband. Her stepson contested probate on the ground that the instrument offered as a will was not properly witnessed. The probate court denied probate. We affirm because the required signatures of the witnesses to the will cannot be supplied from the “self-proving” affidavit.

The instrument offered for probate had all the legal characteristics required of a will save the signatures of attesting witnesses. See Tex.Prob.Code Ann. § 59 (Vernon Supp.1980). The instrument, in pertinent part, provides as follows:

There are no attesting witnesses to the will and to the testator’s signature, unless the affidavit may be deemed to provide such omission.

In Boren v. Boren, 402 S.W.2d 728 (Tex.1966) our supreme court held:

The self-proving provisions attached to the will are not a part of the will but concern the matter of its proof only. The only purpose served by such self-proving provisions is to admit a will to probate without the testimony of a subscribing witness. The provision was introduced into the Texas Probate Code in 1956 as an alternative mode of proving a will. It was not the purpose of the Legislature to amend or repeal the requirement that the will itself must meet the requirements of the law. Section 59 expressly states that a self-proved will, except for the manner of proof, shall be treated no differently than a will which is not self-proved. The execution of a valid will is a condition precedent to the usefulness of the self-proving provisions of Section 59. This Court approved the judgment and opinion in McGrew v. Bartlett, 387 S.W.2d 702 (Tex.Civ.App.1965, writ ref.), that a will was a nullity because the signatures of the testator and the witnesses appeared on the self-proving provisions, but not on the will itself.

A testamentary document to be self-proved, must first be a will. Many reasons support that rule as the true legislative purpose. In this case, the self-proving affidavit states that the witnesses’ “names are subscribed to the annexed or foregoing instrument ...” and that “each witness stated further that they did sign the same as witnesses.... ” In fact, the names of the witnesses are not so subscribed to the will. The affidavits identify as the will a document which is inconsistent with the one offered. [Citations omitted.]

402 S.W.2d at 729.

Appellant concedes the force of Boren but urges that, inasmuch as the witnesses each signed twice, we should consider the first set of signatures as a part of the will and the second set as a part of the self-proving affidavit. We must reject this ingenious approach because both sets of signatures are, inescapably, part and parcel of the self-proving affidavit and neither set are affixed to the “will” as required by Boren or by § 59 of the Texas Probate Code.

We are not furnished a statement of facts, but we do have the trial court’s findings of fact from which we gather that the trial court was satisfied that the testator and the “witnesses” innocently completed the typed instrument and filled all the blanks therein in the belief that they had accomplished the making of a lawful will. Despite their efforts, the trial court and this court are compelled to obey § 59 as construed by our supreme court. Consequently, we hold that the instrument offered is not entitled to probate.

Affirmed.