Muhlbauer v. Muhlbauer

Court of Appeals of Texas

Muhlbauer v. Muhlbauer

686 S.W.2d 366, 1985 Tex. App. LEXIS 6267

CourtCourt of Appeals of Texas

DecidedFebruary 28, 1985

Docket2-84-145-CV

StatusPublished

Cited by12 cases

This text of 686 S.W.2d 366 (Muhlbauer v. Muhlbauer) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Muhlbauer v. Muhlbauer, 686 S.W.2d 366, 1985 Tex. App. LEXIS 6267 (Tex. Ct. App. 1985).

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Opinion

OPINION

JOE SPURLOCK, II, Justice.

This appeal is from a contest in the probate court in which the court denied the *368 probate of a purported will. The appellant, Joan Muhlbauer, is the surviving spouse of the deceased, John Muhlbauer. The appel-lee, Maureene Muhlbauer, is the daughter of the deceased and step daughter of appellant.

In December of 1970, John Muhlbauer executed his first will leaving his estate to his three children. He was unmarried at that time. In August of 1976, he married the appellant and remained married to her until his death. It is alleged that he executed a second will in January 1979 in which he revoked any prior will and designated appellant as the primary beneficiary, with his estate to be divided equally between his three children and her four children should she not survive him. Upon his death, appellee filed the 1970 will for probate and the probate court admitted the will to probate. Appellant filed her contest later along with her application for probate of the 1979 will. After trial on the contested issue, the court ruled that the 1979 will had not been executed with all of the formalities and solemnities required by the code and declined to accept the 1979 will for probate. From that order, this appeal was taken. For reasons stated hereinafter, we affirm.

Appellant, in eleven points of error, complains that the trial court committed error in its ruling. The points of error are not in such form, nor with such particularity as to actually advise this court of the error committed by the trial court below. We believe that appellant is attacking an implied finding made by the court that appellant’s evidence was insufficient to admit the will to probate, i.e. that the court’s ruling is against^ the great weight and preponderance of the evidence.

In her first two points of error, appellant complains that the judgment of the trial court should be reversed and rendered in her favor as the court committed error in entering a judgment refusing to admit the 1979 will to probate by finding that the same was not signed with all the formalities and solemnities required by sec. 59 of the Texas Probate Code and because the court found that the testator did not request assistance in signing the will as required by that same section. Her third and fourth points of error discuss the testimony at trial and argue with the court’s finding in that regard. Her fifth point of error is that if this court finds the evidence inconclusive, then the fact that one of appellant’s witnesses’ memory failed him should not have lead to the conclusion of the trial court that it deny the 1979 will. It would add nothing to the jurisprudence of the State of Texas to discuss appellant’s remaining points of error.

It is clear that the burden was on the appellant, as proponent of the instrument offered for probate, to prove the execution of a valid will. See Mossier v. Johnson, 565 S.W.2d 952, 957 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.) and In re Estate Rosborough, 542 S.W.2d 685, 688 (Tex.Civ.App.—Texarkana 1976, writ ref’d n.r.e.). When a party having the burden of proof appeals from an adverse fact finding in the trial court, the point of error should be that the matter was established as a matter of law, or that the court’s finding was against the great weight and preponderance of the evidence. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). We construe appellant’s points of error as asserting that the court’s ruling in the present case was against the great weight and preponderance of the evidence.

The matter was tried before the court without a jury and after trial there was no request made for findings of fact or conclusions of law. The court did comment upon the evidence at the time it made the order in this case, and the record of testimony together with the court’s comments are before us.

In a trial to the court where no findings of fact or conclusions of law are filed or requested, the judgment of the trial court implies all necessary findings of fact in support thereof. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). These implied findings may be challenged by “no evidence” and “insufficient evidence” points and where such points are raised, *369 the standard of review to be applied is the same as that to be applied in the review of jury findings or a trial court’s findings of fact. Id.

Where the challenge to a finding is framed as an “insufficient evidence point,” we are to consider all the evidence, both that in support of and contrary to the challenged finding, to determine if the finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951); City of Lubbock v. South Plains Electric Cooperative, Inc., 593 S.W.2d 138, 143 (Tex.Civ.App.—Amarillo 1979, writ ref’d n.r.e.).

Where the implied findings of fact are supported by the evidence, it is the duty of the appellate court to uphold the judgment on any theory of law applicable to the case. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1977); Ellis v. Waldrop, 627 S.W.2d 791 (Tex.App.—Fort Worth 1982), rev’d on other grounds, 656 S.W.2d 902 (Tex.1983). This is so regardless whether the trial court articulates the correct legal reason for the judgment. Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, 84 (1939); Rheiner v. Varner, 627 S.W.2d 459, 462 (Tex.App.—Tyler 1981, no writ).

The particular question in this case revolves around the interpretation of the statute in question. TEX.PROB.CODE ANN. sec. 59 (Vernon 1980). This statute provides in part as follows:

Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator in person or by another person for him by his direction and in his presence, ...

The language of this statute “has been construed to mean that a will may be executed by a testator who is unable to write his name, by making his mark and instructing some other person to write his name.” Guest v. Guest, 235 S.W.2d 710, 713 (Tex. Civ.App.—Fort Worth 1950, writ ref d n.r. e.).

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