First Church of Christ, Scientist v. John S. Browning, Individually and as Administrator of the Estate of John H. Browning and Mary Ann Stephenson--Appeal from County Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-95-204-CV

FIRST CHURCH OF CHRIST, SCIENTIST,

Appellant

v.

JOHN S. BROWNING, INDIVIDUALLY AND

AS ADMINISTRATOR OF THE ESTATE OF

JOHN H. BROWNING AND MARY ANN STEPHENSON, Appellee

From the County Court

McLennan County, Texas

Trial Court # 940324 PR1

O P I N I O N

The First Church of Christ, Scientist (the Church) appeals from a summary judgment granted in favor of John S. Browning in this will contest case and asserts that questions of fact preclude the summary judgment. We agree with the Church and will reverse and remand.

John H. Browning (Decedent) was found dead in a Waco motel room on June 11, 1994, at the age of eighty-five. Justice of the Peace John Cabaniss was called to the scene. While there, he reviewed a will executed by Decedent that was among Decedent's personal effects. After investigation, all of Decedent's personal effects were delivered to the Waco Police Department and placed in the property room. Later, the police department delivered Decedent's personal effects found in the motel room to Decedent's son, John S. Browning (Browning). Browning, however, denies that an original will was among the property he received from the police.

Browning applied for Letters of Independent Administration Without Bond on June 13, and represented to the court that Decedent had died intestate with only himself and his sister, Mary Ann Stephenson, surviving. On August 31, the Church filed its Application for Probate of Will and Issuance of Letters Testamentary or Alternatively for Letters of Administration With Will Annexed. The Church supplied the court with a photocopy of a self-proved will and alleged that the original cannot be produced because "applicant believes the original will to have been delivered after the death of decedent to the Waco Police Department which delivered the original to John S. Browning and the whereabouts of said will is unknown to applicant." The will, drafted by the Dunham law firm, was executed by Decedent on May 28, 1981, bequeathed five dollars to each of his two children, and bequeathed the rest, residue and remainder of his estate to the Church. Acting on his and his sister's behalf, Browning contested the probate of the photocopied will, alleging that the "Church has not, as a matter of law, established the requirements of the Probate Code of the State of Texas including but not limited to Section 81 of the Probate Code."

After extensive discovery, Browning moved for a summary judgment denying the photocopied will's admission to probate. Browning contended in the motion that, because no original will was found, produced, or filed, the presumption of revocation arose and was not rebutted by the Church. Following a hearing, the court granted Browning's motion for a summary judgment and ordered that the Church take nothing.

STANDARD OF REVIEW

A party is entitled to summary judgment if he can demonstrate that there is no genuine issue of material fact. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex. 1985). Evidence favorable to the non-movant is taken as true; all reasonable inferences are indulged in favor of the non-movant, and any doubts are resolved in his favor. Id.

DISCUSSION

Browning's motion for a summary judgment asserts that the summary-judgment evidence "establish[es], without controversy, and without any issue of fact being raised," that:

a. No original, written will of Decedent has been filed or produced;

b. No original, written will of Decedent was found among his effects or elsewhere upon his death;

c. No original, written will of Decedent having been found among his effects or produced after his death, a legal presumption arises that the alleged will had been revoked by decedent prior to his death; and

d. The legal presumption of revocation has not been rebutted or overcome, and cannot be rebutted or overcome by evidence.

However, Judge Cabaniss, who is also an attorney, testified in his deposition about the will that was found and that he inspected in the Decedent's motel room on June 11, 1994. The following excerpt of Judge Cabaniss' deposition testimony was attached as summary-judgment evidence:

Q: The will that you saw, do you do you recall whether it was a copy or whether it was an original?

A: It was an original.

Q: I'll hand you what's been marked Cabaniss Exhibit Number 1, and ask you if you can identify that instrument?

A: Well, I don't know whether I can or not, Frank, because this is a will, I can see that it's a copy of one. Now, bear in mind that even though I'm an attorney, what I was looking for was trying to find an address of the old gentleman; so the thing I looked at is I did look, of course, at the very first of the will and looked through it, and it was an original will. It was, from everything I could see looking at it, a probatable will, because it was an original.

Judge Cabaniss testified that he observed that the will had been drafted by an attorney at the Dunham law firm in Waco, and that he contacted the firm to inform them of Decedent's death and of the will he had seen. Vance Dunham, Jr., a member of the firm, was deposed and testified as follows:

Q: Okay. I'll ask you this, Vance: Did you find an original will of John Hubbard Browning?

A: No. No.

Q: Did you find what appeared to be a copy, a photocopy of a will?

A: Yes. I had a copy. We keep a copy of every will that we execute.

. . .

Q: Okay. Do you have any independent knowledge that Mr. John Hubbard Browning did or did not revoke the original of a will dated May 28, 1981 by executing a later dated will?

A: We did not draw any other will for Mr. Browning. This is the only will that we ever prepared for him. I have no knowledge as to whether or not this will was revoked or not revoked.

Considering the summary-judgment evidence in the light most favorable to the Church, the non-movant, a fact-finder could believe Judge Cabaniss' testimony that he saw an original will after Decedent's death and Dunham's testimony that his firm only prepared one will for Decedent. Taking the foregoing as true as we must in a summary-judgment case the presumption of revocation is inapplicable because there was evidence that an original will was seen following Decedent's death. Hoppe v. Hoppe, 703 S.W.2d 224, 226 (Tex. App. Houston [14th Dist.] 1985, writ ref'd n.r.e.). Additionally, a reasonable inference arises that also must be indulged in favor of the Church that the photocopy of the will offered for probate is a copy of the unrevoked original will that Judge Cabaniss saw after Decedent's death. The result of the foregoing testimony and inferences, taken as true, would allow the probate of the photocopied will. Tex. Prob. Code Ann. 81 (Vernon 1980 & Supp. 1995). Therefore, the summary-judgment evidence raises questions of fact, and the summary judgment was improperly granted. Point of error one is sustained. Due to the disposition of point one, we do not reach the Church's second point.

The case is reversed and remanded for a trial.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reversed and Remanded

Opinion delivered and filed December 6, 1995

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