George Brown v. Lucy Traylor and Leona Simpson

Opinion issued April 27, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-01091-CV

____________

GEORGE C. BROWN , Appellant

V.

LUCY TRAYLOR, DARRYL KEITH WALKER, PAUL WAYNE

WALKER, ANTHONY C. WALKER, TERRY L. WALKER, and JAMES E.

WALKER , Appellees

On Appeal from Probate Court No. 4

Harris County, Texas

Trial Court Cause No. 323,033-401

O P I N I O N

Appellant, George C. Brown (“George”), appeals from a judgment, rendered

upon a jury verdict, probating what the jury concluded was a true and correct copy

of the will of his father, Henry Brown (“Henry”), deceased. We determine whether

(1) legally sufficient evidence supported the jury’s award of attorney’s fees to

appellee Lucy Traylor (“Traylor”), who was appointed administrator of Henry’s

estate; (2) the trial court erred in refusing a jury instruction stating that a testator must

publish the will to the subscribing witnesses; (3) George waived all but one of his

legal-sufficiency challenges; (4) the evidence was factually sufficient to support

various express and implicit jury findings; and (5) we have jurisdiction over George’s

appellate complaints concerning a post-judgment order appointing a substitute

administrator when no appeal was perfected from that order. We affirm the judgment

in part, reserve it in part with respect to the award of attorney’s fees, and remand the

cause for a determination of matters relating to attorney’s fees.

Background

George was Henry’s son. Traylor was a long-time friend of Henry and his

wife. Henry died on April 15, 2001 at the age of 81. On June 20, 2001, George filed

an application to determine heirship, alleging that Henry had died intestate. In

response, on October 11, 2001, Traylor filed an opposition to George’s application,

and she simultaneously moved the trial court to order George to file Henry’s original

will, which she alleged that Henry had executed on March 13, 1999. When the

original will could not be located, Traylor filed, on February 5, 2002, a verified

application to probate a copy of the March 13, 1999 will (“the will copy”). On April

19, 2002, George filed an opposition to Traylor’s probate application and counter-sued Traylor and her daughter, Pamela Ann Yancy (“Yancy”)—the notary public who

had drafted the March 13, 1999 will—for civil conspiracy to commit forgery and

fraud, based on their filing what he claimed was a forged copy of the will, seeking

actual and exemplary damages.

The jury found that (1) Henry had testamentary capacity on March 13, 1999;

(2) Henry signed the March 13, 1999 will; (3) Melva Collins (“Collins”),

Wanda

Walker (“Wanda”),

Darryl Keith Walker (“Darryl”),

and Yancy each “subscribed

his or her name in his or her own handwriting to the [March 13, 1999 will] while in

the presence of Henry Brown at a time when he or she was above the age of 14

years”; (4) the will copy was not forged;

(5) Henry did not revoke the March 13,

1999 will; (6) the will copy was a true and correct copy of Henry’s March 13, 1999

will;

(7) Traylor acted in good faith and with just cause in defending the March 13,

1999 will;

and (8) Traylor’s reasonable and necessary attorney’s fees incurred in

trying to probate the will were $20,000. Based on the jury’s findings, the trial court

admitted the will copy to probate, rendered a take-nothing judgment on George’s

claims against Traylor and Yancy, appointed Traylor to be dependent administratrix

with will annexed of Henry’s estate, and awarded Traylor $20,000 in attorney’s fees.

George moved for new trial, which was denied by operation of law.

Traylor’s Attorney’s Fees

In answering jury question seven, the jury expressly found that Traylor acted

in good faith and with just cause in defending the March 13, 1999 will for the purpose

of having it admitted to probate. In answering jury question eight, the jury found that

that $20,000 would fairly and reasonably compensate her for the necessary legal

services rendered in trying to probate the will. The instruction accompanying jury

question eight provided that

in ascertaining the reasonable value of services of an attorney, you may

take into consideration the time and labor required; the novelty and

difficulty of the questions involved, and the skill required to perform the

legal services properly; the fee customarily charged in the locality for

similar legal services; the amount involved and the results obtained; and

the experience, reputation and ability of the lawyer or lawyers

performing the services.

See Tex. Disciplinary R. Prof’l Conduct 1.04, reprinted in Tex. Gov’t Code

Ann. , tit. 2, subtit. G app. A (Vernon 2005) ( Tex. State Bar R . art. X, § 9)

(establishing similar, but also additional, criteria to be considered in determination

of reasonableness of attorney’s fees).

In issue seven, George argues that the trial court abused its discretion in

overruling his objection to the admission of Traylor exhibits 10 and 14—fee

statements that she offered as evidence of her attorney’s fees—because those exhibits

were offered through Traylor, who was not an expert. George argues that this error

was harmful because “there was no other evidence to support the jury’s answer” to

the jury question concerning the amount of attorney’s fees. Under a liberal

construction of his issue seven,

George alternatively argues that (1) even if these two

exhibits were properly admitted, they were legally insufficient to support the award

of attorney’s fees because they could not substitute for the expert testimony required

to prove up the amount of attorney’s fees and (2) Traylor produced no expert

testimony proving up the amount of her fees. We understand George’s legal-sufficiency challenge to attack only the jury’s finding on question eight, not question

seven.

1. The Law

When any person designated as executor in a will or an alleged will, or

as administrator with the will or alleged will annexed, defends it or

prosecutes any proceeding in good faith, and with just cause, for the

purpose of having the will or alleged will admitted to probate, whether

successful or not, he shall be allowed out of the estate his necessary

expenses and disbursements, including reasonable attorney’s fees, in

such proceedings.

Tex. Prob. Code Ann. § 243 (Vernon 2003). “Expert testimony is required to

support an award of attorney’s fees.” Woollett v. Matyastick , 23 S.W.3d 48, 52 (Tex.

App.—Austin 2000, pet. denied) (so holding in context of attorney’s fees awarded to

guardian in guardianship proceeding); Barrett v. Parchman , 675 S.W.2d 289 , 291–92

(Tex. App.—Dallas 1984, no writ) (sustaining no-evidence challenge to attorney’s

fees awarded to temporary administratrix of estate when no expert testimony

supported fee award and when only evidence of reasonableness and necessity of fees

was administratrix’s testimony).

2. Standards of Review

Addressing George’s primary argument under issue seven, we review the

admission of evidence for abuse of discretion. See In re J.P.B. , 180 S.W.3d 570, 575

(Tex. 2005).

George’s alternative argument under issue seven requires us to conduct a legal-sufficiency review, in which “we must view the evidence in a light that tends to

support the finding of disputed fact and disregard all evidence and inferences to the

contrary.” Wal-Mart Stores, Inc. v. Miller , 102 S.W.3d 706, 709 (Tex. 2003).

However, “[t]he final test for legal sufficiency must always be whether the evidence

at trial would enable reasonable and fair-minded people to reach the verdict under

review. . . . [L]egal-sufficiency review in the proper light must credit favorable

evidence if reasonable jurors could, and disregard contrary evidence unless

reasonable jurors could not.” City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex.

2005).

The jury is the sole judge of witnesses’ credibility, and it may choose to believe

one witness over another; a reviewing court may not impose its own opinion to the

contrary. Id . at 819. Because it is the jury’s province to resolve conflicting evidence,

we must assume that jurors resolved all conflicts in accordance with their verdict if

reasonable human beings could do so. Id.

When, as here, an appellant attacks the legal sufficiency of an adverse finding

on an issue for which he did not have the burden of proof, the appellant must

demonstrate that there is no evidence to support the adverse finding. Croucher v.

Croucher , 660 S.W.2d 55, 58 (Tex. 1983). Such a no-evidence challenge will be

sustained when “‘(a) there is a complete absence of evidence of a vital fact, (b) the

court is barred by rules of law or of evidence from giving weight to the only evidence

offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more

than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the

vital fact.’” King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003) (quoting

Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997)).

3. Admission of the Fee Statements

George objected to only exhibit 10, not to exhibit 14. He thus waived his

challenge to the admission of exhibit 14.

See Tex. R. App. P. 33.1(a)(1). His failure

to object to exhibit 14, however, does not render harmless the admission of exhibit

10 (assuming that it was error to admit exhibit 10). Exhibit 14 was a supplement to

the billing statement (exhibit 10) previously admitted into evidence; it was not merely

the same evidence offered a second time, and exhibit 14 documented only $7,087.50

in fees. Therefore, the admission of Exhibit 14 did not render harmless the fee

information contained in exhibit 10, assuming without deciding that exhibit 10 was

improperly admitted. See Tex. R. App. P. 44.1(a).

4. Sufficiency of the Evidence

We need not consider whether exhibit 10 was improperly admitted for lack of

expert predicate because, even if it was not, there would still be no evidence of the

necessity for, or the reasonabless of, Traylor’s attorney’s fees. Traylor testified as

follows:

Traylor’s counsel:Now, when you came to my office, you asked me to

help you in this matter; is that correct?

Traylor:Right.

Traylor’s counsel:And did you need a lawyer to represent you at that

time?

Traylor:Yes.

Traylor’s counsel:And I agreed to represent you; is that correct?

Traylor:Right.

Traylor’s counsel:And you agreed to hire me as your attorney?

Traylor:Right.

Traylor’s counsel:And you agreed to pay me $175 an hour?

Traylor:I sure did.

. . .

Traylor’s counsel:Now, my fees charged to you were reasonable and

necessary? My fees—

George’s counsel:Objection, calls for expert testimony. She’s not

qualified as an expert to testify to that.

Traylor’s counsel:I think she can say whether they’re reasonable or

necessary.

Court:I think it would go to the weight of her testimony.

So, she can answer, if you like.

Traylor’s counsel:You didn’t ask—did you have anyone else to file a

lawsuit and file a motion for probate to protect your

interests?

Traylor:No.

Traylor’s counsel:Could you have done it yourself? Could you have

done it yourself?

Traylor:No.

Traylor’s counsel:So, my working for you was necessary, was it not?

You needed me to work for you?

Traylor:Right.

Traylor’s counsel soon thereafter offered exhibit 10:

Traylor’s counsel:At this time, Judge, I would offer Traylor No. 10,

which is my fee statement. And I will also advise

the Court that that’s not a complete fee statement. It

does not include trial dates, and the trial and does

not include work that was done in the latter part of

August, 2004.

George’s counsel:Well, this document is hearsay. We, also, object

under Rule 701 and 702 because it calls for expert

opinion testimony. There’s been no expert to get up

on the witness stand to testify that their attorney’s

fees are reasonable and necessary. And this is all

hearsay.

Traylor’s counsel:Judge, you can take judicial notice of the Court’s file

and judicial notice of attorney’s fees. If necessary,

I can testify.

Court:I think he can testify. So, I will let it in.

The next day, the trial court admitted Traylor exhibit 14, after this discussion:

Court:On your additional attorney’s fees, I believe you did

testify during the trial about your hourly rate and

said you didn’t know the number of hours yet. And

I understand you want to supplement to show the

number of hours you have?

Traylor’s counsel:That’s correct. That’s Traylor Exhibit No. 14.

Court:It shall be admitted.

The exhibits themselves merely set out what work was done and what was

charged; they contain no information concerning the reasonableness and necessity of

the fees incurred or charged.

We hold that, even if Exhibit 10 was properly admitted and thus may be

considered in our sufficiency review, and even though no objection was made to

exhibit 14, Traylor presented no evidence of reasonableness or necessity to support

the jury’s award of $20,000 in attorney’s fees to Traylor. We measure the sufficiency

of the evidence against the charge given because no one objected to it,

and that

charge required proof of reasonableness and necessity by evidence such as the time

and labor required; the novelty and difficulty of the questions involved; the skill

required to perform the legal services properly; the fee customarily charged in the

locality for similar legal services; the amount involved; the results obtained; and the

experience, reputation, and ability of the lawyer or lawyers performing services for

Traylor. So did the law. See Ragsdale v. Progressive Voters League , 801 S.W.2d

880, 881 (Tex. 1990) (“In awarding attorney’s fees the trial court, as the trier of fact,

must take into account various factors such as: the nature and complexity of the case;

the nature of the services provided by counsel; the time required for trial; the amount

of money involved; the client’s interest that is at stake; the responsibility imposed

upon counsel; and the skill and expertise required.”); see also Hamil v. Caver , No.

B14-90-00125-CV, 1991 WL 24560 , at *5–6 (Tex. App.—Houston [14th Dist.] Feb.

28, 1991, writ denied) (not designated for publication) (holding that attorneys’

testimony of reasonableness and necessity—in light of hours billed, hourly rate,

reasonable rates in area, complexity of case, and like factors—supported award of

attorney’s fees under Probate Code section 243) . The law also required that

reasonableness and necessity be proved by expert testimony. See Woollett , 23 S.W.3d

at 52 ; Barrett , 675 S.W.2d at 291 . The fee statements did not speak to these

matters,

Traylor was not an expert on attorney’s fees,

and no expert testified to the

reasonableness and necessity of the attorney’s fees that Traylor incurred. See Barrett ,

675 S.W.2d at 291–92.

Traylor first responds by arguing that “[t]he requirement of necessity of the

attorney’s fees award was presumed under [section] 243 once the jury found that

Traylor was acting in good faith and with just cause.”

(Emphasis added.) The cases

that Traylor cites in support do not hold or intimate that such a presumption arises,

however. See Russell v. Moeling , 526 S.W.2d 533 , 535–36 (Tex. 1975); Huff v. Huff ,

124 S.W.2d 327, 329 (Tex. 1939). In fact, neither these cases nor the statute’s plain

language supports Traylor’s position. The Legislature provided that the executor or

administrator “shall be allowed . . . his necessary expenses and disbursements,

including reasonable attorney’s fees”

— that is, the Legislature provided that the

only attorney’s fees that must be awarded are those that are both necessary and

reasonable, implying that the necessity and reasonableness of those fees must still be

shown.

Traylor next responds that “the [trial] court can take judicial notice of the

reasonableness of the [attorney’s] fees” in this case because Texas Civil Practice and

Remedies Code sections 38.003 and 38.004 apply by analogy and allow both a

presumption of reasonableness and the court’s judicial notice of customary attorney’s

fees. Civil Practice and Remedies Code section 38.003 expressly provides for a

presumption, but no such express statutory presumption exists in Probate Code

section 243. Compare Tex. Civ. Prac. & Rem. Code Ann. § 38.003 (Vernon 1997)

(“It is presumed that the usual and customary attorney’s fees for a claim of the type

described in Section 38.001 are reasonable. The presumption may be rebutted.”) with

Tex. Prob. Code Ann. § 243 (not expressly providing for any such presumption).

Additionally, Civil Practice and Remedies Code section 38.004 allows a court to take

judicial notice of usual and customary attorney’s fees, but only in a bench trial or in

a jury trial in which the parties have agreed to submit the question of the amount of

attorney’s fees to the court. See Tex. Civ. Prac. & Rem. Code Ann. § 38.004

(Vernon 1997). By its own terms, then, section 38.004—even assuming without

deciding that that section could apply by analogy—would not apply here, where the

issue of the amount of attorney’s fees was submitted to the jury.

We thus hold that the evidence was legally insufficient to support the jury’s

award of $20,000 in attorney’s fees to Traylor. However, George preserved this

legal-sufficiency challenge in his motions for new trial, rather than in a motion for

instructed verdict, a motion for judgment notwithstanding the verdict, an objection

to the submission of a jury issue, or a motion to disregard the jury’s answer on a vital

fact issue . Accordingly, George is entitled only to a remand, rather than to a

rendition. See Horrocks v. Tex. Dep’t of Transp. , 852 S.W.2d 498, 499 (Tex. 1993).

We sustain the portion of issue seven concerning legal sufficiency of the

evidence of the jury’s award of attorney’s fees under question eight. We thus need

not reach that portion of issue seven concerning the propriety of admitting exhibit 10.

“If the error affects part of, but not all, the matter in controversy and that part

is separable without unfairness to the parties, the judgment must be reversed and a

new trial ordered only as to the part affected by the error.” Tex. R. App. P. 44.1(b).

This case presents such a situation. See Woods Exploration & Producing Co. v. Arkla

Equip. Co. , 528 S.W.2d 568, 571 (Tex. 1975) (severing portion of judgment awarding

attorney’s fees, reversing that portion of judgment, and remanding cause).

Concluding that the matter of the amount of attorney’s fees is severable from the

remainder of the judgment, we reverse only that portion of the judgment awarding

attorney’s fees to Traylor.

The Validity of the Will and the Propriety of Probating the Will Copy

A. The Will Copy

The March 13, 1999 will consisted of five pages. The first three pages

appeared in larger font and named Wanda as executrix of his estate “without bond,”

with George as alternate executor. On the will’s third page appeared the following

distributions:

To Wanda Walker:30 percent of my estate

To George C. Brown:30 percent of my estate

To Leonia Simpson:20 percent of my estate

To James Austin:10 percent of my estate

To Lucy Traylor:10 percent of my estate

Also on the third page, immediately following the distributions, appeared the

following recital:

I herewith affix my signature to this will on this the 13th day of

March , 1999, at Houston, Texas, in the presence of the following

witnesses, who witnessed and subscribed this will at my request and in

my presence.

[notary seal of Pamela Yancy]

No signature appeared on page three, however. Rather, on page four, in smaller and

different typesetting, appeared the following:

STATE of Texas

COUNTY of Harris

Before me, the undersigned authority authorized to take

acknowledgments and administer oaths, personally appeared

Henry J.

Brown Henry Brown

Henry Brown

who after being having [sic] duly sworn or affirmed to tell the truth,

stated:

1.That Henry J. Brown declared this instrument to be his last will

and testament to the witnesses.

2.That Henry J. Brown signed this instrument in their presence.

3.That the witnesses signed as witnesses in the presence of Henry

J. Brown and each other.

4.That Henry J. Brown is well known to the witnesses, and the

witnesses believe Henry J. Brown to be of lawful age, of sound mind

and under no undue influence or constraint.

Pamela A. Yancy

Officer

Title of Officer: Notary

My Commission Expires: 01-29-2002

[notary seal of Pamela Yancy]

The fifth and final page of the will copy, which appeared in the same font as that on

page four, read as follows:

ATTESTATION CLAUSE

On the date above written, Henry J. Brown, well known to us, declared

to us, and in our presence, that this instrument, consisting of 5

pages, is his last will and testament, and Henry J. Brown then signed this

instrument in our presence, and at Henry J. Brown’s request we now

sign this will as witnesses in each other’s presence. Further that Henry

J. Brown, appeared to us to be of sound mind and lawful age, and under

no undue influence.

Witness:

Melva L. Collins

Address: [address indicated]

Witness:

Wanda Walker

Address: [address indicated]

Witness:

Darryl K. Walker

Address: [address indicated]

[notary seal of Pamela Yancy]

B. The Law

“Every person who meets the requirements prescribed in Section 57 of the

Probate Code ‘shall have the right and power to make a last will and testament, under

the rules and limitations prescribed by law.’” Estate of Morris , 577 S.W.2d 748, 756

(Tex. Civ. App.—Amarillo 1979, writ ref’d n.r.e.) (quoting Tex. Prob. Code Ann.

§ 57 (Vernon 2003)). “When one meets the legal requirements, properly executes a

will and provides for a disposition of his property not violative of public policy, his

testamentary disposition should be respected.” Id.

To be valid, every will must, with exceptions inapplicable here,

(1)be in writing and signed by the testator in person or by another

person for him by his direction and in his presence and

(2)if not wholly in the testator’s handwriting, be attested by two or

more credible witnesses above the age of 14 years, who must

subscribe their names thereto in their own handwriting and in the

testator’s presence.

Tex. Prob. Code Ann. § 59(a) (Vernon 2003). “[A]ttestation of a will is the act of

witnessing the performance of the statutory requirements to a valid execution of the

will.” Zaruba v. Schumaker , 178 S.W.2d 542, 543 (Tex. Civ. App.—Galveston 1944,

no writ). A “credible” witness means a competent witness. Triestman v. Kilgore , 838

S.W.2d 547, 547 (Tex. 1992). “A competent witness to a will is one who receives no

pecuniary benefit under its terms.” Id. The witnesses need not see the testator sign

the will, as long as they can attest, from direct or circumstantial facts, that the testator

in fact executed the document that they are signing.

Neither must they sign the will

in each other’s presence. See, e.g. , Zaruba , 178 S.W.2d at 543 ; Davis v. Davis , 45

S.W.2d 240, 241 (Tex. Civ. App.—Beaumont 1931, no writ).

Because the will copy did not contain a self-proving affidavit,

Traylor, as the

will’s proponent, had to prove the following:

(1). . . that the testator, at the time of executing the will, was

at least eighteen years of age . . . and was of sound mind; and

(2). . . that the testator executed the will with the formalities

and solemnities and under the circumstances required by law to make it

a valid will; and

(3)[t]hat such will was not revoked by the testator.

Tex. Prob. Code Ann. § 88(b) (Vernon 2003). “No will in writing, and no clause

thereof or devise therein, shall be revoked, except by a subsequent 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.” Id. § 63 (Vernon 2003).

When a will that was last seen in the testator’s possession cannot be found after his

death, a rebuttable presumption of revocation arises. See In re Estate of Capps , 154

S.W.3d 242, 245 (Tex. App.—Texarkana 2005, no pet.). That presumption may be

overcome by proof and circumstances contrary to the presumption or by proof that

the will was fraudulently destroyed by another person. Id.

Because she sought to probate a copy of a March 13, 1999 will, rather than the

original will, Traylor also had to “proceed under section 85 of the Probate Code,

which provides the requirements for proving a ‘written will not produced in court.’”

Garton v. Rockett , No. 01-04-01037-CV, 2005 WL 3494962, at *5 (Tex.

App.—Houston [1st Dist.] Dec. 22, 2005, no pet.) (quoting Tex. Prob. Code Ann.

§ 85 (Vernon 2003)).

A written will which cannot be produced in court shall be proved in the

same manner as provided in [Probate Code section 84] 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 . . . .

Tex. Prob. Code Ann. § 85. Additionally, section 85 requires that

the cause of [the written will’s] non-production . . . 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

it or heard it read.

Id. Section 84, the requirements of which section 85 incorporates, provides in

pertinent part that, “[i]f not self-proved as provided in this Code, an attested written

will produced in court may be proved: (1) By the sworn testimony or affidavit of one

or more of the subscribing witnesses thereto, taken in open court.” Id. § 84(b)(1)

(Vernon 2003).

C. The Charge

In issue one, George argues that the trial court erred in “failing to submit a

proper jury question on the attestation requirement.”

“Rule 277 of the Texas Rules of Civil Procedure requires a trial court to submit

‘such instructions and definitions as shall be proper to enable the jury to render a

verdict.’” State Farm Lloyds v. Nicolau , 951 S.W.2d 444, 451 (Tex. 1997) (quoting

Tex. R. Civ. P. 277)). “This rule, we have recognized, affords the trial court

considerable discretion in deciding what instructions are necessary and proper in

submitting issues to the jury.” Id. “An instruction is proper if it finds support in any

evidence of probative value and if it might be of some assistance to the jury in

answering the questions submitted.” Evans v. Allwhite , 111 S.W.3d 282, 284 (Tex.

App.—Texarkana 2003, no pet.).

In pertinent part, the jury charge and verdict read:

QUESTION NO. 3

Do you find from a preponderance of the evidence that the

individual or individuals named below subscribed his or her name in his

or her own handwriting to the purported will dated March 13, 1999

while in the presence of Henry Brown at a time when he or she was

above the age of 14 years?

INSTRUCTION

One requirement of a valid typewritten will is that the witnesses

sign in the actual presence or conscious presence of the testator.

Conscious presence means that Henry Brown was able to see the

witnesses to the will from his actual position at the time, or at most,

from such position as slightly altered, where he has the power readily to

make the alteration without assistance. There is no requirement that the

witness know that he or she is signing a will.

Answer:Yes or No

Melva L. CollinsAnswer: Yes

Wanda WalkerAnswer: Yes

Darryl K. WalkerAnswer: Yes

Pamela A. YancyAnswer: Yes

(Emphasis added.)

George proposed the following jury question, which the trial court rejected in

writing:

QUESTION 1:

Do you find that Henry Brown executed the purported will dated

March 13, 1999 with all the formalities to make it a lawful and valid

will?

You are instructed that all of the formalities required by law to

make a valid will are as follows:

1.The will must be in writing;

2.The testator must be 18 years or older;

3.The testator must personally sign the will;

4.The will must be attested by two or more credible and

disinterested witnesses above the age of 14 years who each

subscribe their names to the will in their own handwriting.

“Attested” means that the testator acknowledged to the witnesses that it

was his will and the witness [sic] signed it at the request of the testator,

and in the presence of the testator.

“Disinterested” means that a person that [sic] does not stand to benefit

from probate of the instrument as a will.

Answer “Yes” or “No”

Answer: ________________________

(Emphasis added.)

George argues that his proffered charge was correct because Texas law requires

publication by the testator, that is, that the testator have told the witnesses that the

document that they are signing is his will. In rejecting George’s charge and charging

the jury as it did (“There is no requirement that the witness know that he or she is

signing a will.”), the trial court implicitly rejected George’s statement of Texas law.

The Probate Code does not expressly provide that the testator publish to the

subscribing witnesses that the document that they are witnessing is his will. See Tex.

Prob. Code Ann. §§ 59, 84, 88. Only two opinions have addressed whether

publication is required, and only one of them has done so clearly. The case in which

the court clearly held that Texas law does not require publication was Davis v. Davis .

See id. , 45 S.W.2d at 241 . In Davis , the trial court found that the testator did not tell

one of the attesting witnesses that the document that the witness signed was the

testator’s will and that that witness did not, in fact, know that the document that he

signed was the testator’s will. Id. In upholding the will’s probate, the Davis court

explained:

“Publication,” in relation to the making of wills, is the act of

declaring or making known to the witnesses that the testator understands

and intends the instrument subscribed by him to be his last will and

testament. Publication of a will, or the calling the attention of the

witnesses to the will, by the testator, that the instrument which they are

requested to attest is his will, is not a prerequisite to its legality unless

required by statute.

. . . .

Generally, it is not essential to the validity of a will that it should

be read over to the witnesses thereto, nor that they should know its

contents. Nor is it necessary, in jurisdictions where publication is not

required, that at the time they signed as witnesses they knew that the

instrument was the testator’s will.

In this state, the law, [Probate Code section 59’s predecessor],

. . . does not require the publication of a will, nor does it require that the

testator inform the attesting witnesses that the instrument to be attested

is his will. . . . Under our statute, to hold that because the testator did

not tell an attesting witness that the instrument he was signing was the

testator’s will rendered the will illegal would be to read into the statute

a prerequisite to the validity of the will that the Legislature did not

include. It would be to superadd a condition or requirement not

expressed in the law. . . . As we have stated above, under the statute of

Texas, publication of the will or knowledge of the attesting witness that

the instrument signed by him was a will are not required.

Id. (citations omitted).

In contrast, in Keding v. Kveton , issued by our predecessor Court in 1923, we

sustained on rehearing the appellants’ contention that

while it is shown that the two persons whose names appear on the will

as witnesses did, in fact, subscribe their names to the instrument, they

did not attest the same, as required by [the predecessor to Probate Code

section 59]

. . . as being the will of John Kveton, that is, . . . there was

no proof that they or either of them saw John Kveton sign said

instrument, or that he told them that it was his will, or that any one else

told them in the presence and hearing of John Kveton that it was his

will .

Id. , 254 S.W. 612, 614 (Tex. Civ. App.—Galveston 1923, no writ) (op. on reh’g)

(emphasis added).

Having sustained this contention, the Keding Court reversed the

judgment admitting the will to probate and remanded the cause. Id. Keding has been

interpreted not as holding that publication is required, but instead as holding that the

witnesses could not attest that the testator had signed ( i.e. , executed) the will:

In this connection, attention is directed to Keding v. Kveton . . . , a case

in which lack of knowledge on the part of the witnesses appeared in the

facts, but in which the decision of the court was apparently based on the

failure to prove that the signature of the testator was his, in view of the

fact that the will was not signed by him in the presence of the witnesses.

In this case it appeared that the two persons whose names were on the

will as witnesses did, in fact, subscribe their names to the instrument,

but there was no proof that they or either of them saw the testator sign

the instrument or that he told them that it was his will, or that anyone

else told them in the presence and hearing of the testator that it was his

will, and one of the witnesses testified that after he had signed the paper

he had said to the other witness that it was the first paper he had ever

signed without knowing what it was. Holding that the will was not

properly executed, the court stated that there was no evidence showing

either that the testator signed the paper offered for probate, or that his

signature was attested by two witnesses as required by law.

Wade R. Habeeb, L.L.B., Annotation, Wills: Necessity that Attesting Witness Realize

Instrument Was Intended as Will , 71 A.L.R.3d 877 , 894 n.14 (1976) [hereinafter

“Habeeb”]. Thus, the Keding Court’s holding may be read simply as having been that

the will could not be proved because the witnesses could not attest that the testator

had signed the document that the witnesses signed. See Keding , 254 S.W.2d at 614

(op. on reh’g) (explaining, “Having finally reached the conclusion that there was no

evidence that John Kveton signed the paper offered for probate, or that his signature

was attested by two witnesses as required by law, we grant the motion for rehearing

. . . .”).

However, another commentator, while agreeing that Keding “may be explained

as a holding that the witnesses could not attest . . . to . . . the execution of the will

because they did not see the testator sign and did not see a signature, and the testator

did not acknowledge in their presence that he had signed,” has also recognized that

“[t]he emphasis laid upon the testimony that the witnesses were not told by the

testator, or in his presence, that the instrument was a will, is significant.” See 9

Gerry Beyer , Texas Practice : Texas Law of Wills , § 18.19 (2002) [hereinafter

“Beyer”]; see also Kveton v. Keding , 286 S.W. 673 , 674–75 (Tex. Civ.

App.—Galveston 1926, writ dism’d w.o.j.) (subsequent appeal in Keding case). In

sum, although Keding does not expressly hold that publication is required, it may be

read as so indicating.

We agree with the Davis court’s holding that publication of the actual contents

of a will is not required and, thus, that a witness need not know that he or she is

signing a will; we interpret Keding as holding merely that the witnesses could not

attest to the testator’s execution of the document that they signed; and we disavow

any reading of Keding that implies that the Probate Code requires actual publication

of a will’s contents or, for that reason, that the witnesses know that they are signing

a will. There is simply no such requirement in the plain language of Probate Code

section 59. See Tex. Prob. Code Ann. § 59(a) (“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, and shall,

if not wholly in the handwriting of the testator, be attested by two or more credible

witnesses above the age of fourteen years who shall subscribe their names thereto in

their own handwriting in the presence of the testator. ”) (emphasis added); Davis , 45

S.W.2d at 241 ; cf. Leeder v. Leeder , 161 S.W.2d 1112, 1114 (Tex. Civ. App.—San

Antonio 1942, writ ref’d) (in dictum, stating, “It is not necessary for the subscribing

witnesses to know the contents of the will. He is simply a witness to the signature of

the testator.”). This Court, like some of its sister courts, has held that attestation

means “the act of witnessing the performance of the statutory requirements to a valid

execution of the will.” See, e.g. , Zaruba , 178 S.W.2d at 543 . Those statutory

requirements do not include publication of a will’s contents or, for that reason, that

the witnesses know that they are signing a will. See Tex. Prob. Code Ann. § 59(a).

In the absence of a requirement of publication, it is generally unnecessary that the

subscribing witnesses know that they are attesting a will. See Habeeb, 71 A.L.R.3d

at 880 (“[T]he courts have held or recognized in numerous cases that in the absence

of a statute or rule requiring publication, it is not necessary that the witnesses should

know that the instrument was intended to take effect as a will. And some cases have

applied this rule even though the lack of knowledge by the witnesses that it was a will

was due to the testator purposely misleading them. In the absence of a statute or rule

requiring publication, the courts have generally held that knowledge by the witnesses

that the instrument that they are witnessing is a will is not made necessary by . . . a

statute providing that wills should be attested and subscribed by witnesses.”)

(footnotes omitted). We decline to imply a requirement that the Legislature did not

include.

We overrule issue one.

D. Legal-Sufficiency Challenges

In issue two, George argues that the evidence is legally insufficient to show

that the will copy was executed with all of the formalities and solemnities to make it

a valid will. In issue five, George argues that the evidence was legally and factually

insufficient both to establish the cause of the non-production of the original will and

to establish that the will was not revoked.

“‘No evidence’ points may be raised by either (1) a motion for instructed

verdict, (2) a motion for judgment notwithstanding the verdict, (3) an objection to the

submission of the issue to the jury, (4) a motion to disregard the jury’s answer to a

vital fact issue or (5) a motion for new trial.” Cecil v. Smith , 804 S.W.2d 509 , 510–11

(Tex. 1991). With the one exception noted above concerning attorney’s fees, George

did none of these things for any legal-sufficiency challenge that he raises on appeal.

We thus hold that George waived all legal-sufficiency challenges but that concerned

with Traylor’s attorney’s fees. See id .

Accordingly, we overrule issues two and five in their entirety.

E. Factual-Sufficiency Challenges

In issue three, George argues that the evidence is factually insufficient to show

that the will copy was executed with all of the formalities and solemnities required

to make it a valid will. In issue six, George argues that the evidence is factually

insufficient both to establish the cause of the non-production of the original will and

to establish that the will was not revoked. In issue four, George asserts that the

evidence is factually insufficient to support the jury’s negative finding on his forgery

cause of action.

1. Standards of Review

In reviewing a factual-sufficiency challenge to a jury finding on an issue on

which the appellant did not have the burden of proof, we consider and weigh all of

the evidence and set aside the verdict only if the evidence that supports the jury

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

v. Bain , 709 S.W.2d 175, 176 (Tex. 1986); Bay, Inc. v. Ramos , 139 S.W.3d 322, 329

(Tex. App.—San Antonio 2004, pet. denied). In reviewing a factual-sufficiency

challenge to a jury finding on an issue on which the appellant had the burden of

proof, the appellant must show that “the adverse finding is against the great weight

and preponderance of the evidence.” Dow Chem. Co. v. Francis , 46 S.W.3d 237, 242

(Tex. 2001).

In either type of factual-sufficiency challenge, we must examine both the

evidence supporting and that contrary to the judgment. See id. ; Plas-Tex, Inc. v. U.S.

Steel Corp. , 772 S.W.2d 442, 445 (Tex. 1989). Additionally, the jury is the sole

judge of witnesses’ credibility, and it may choose to believe one witness over another;

a reviewing 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).

2. Requirements of Valid Will

The jury expressly found that Henry had testamentary capacity when he

executed the March 13, 1999 will, that he signed the will, that four witnesses above

the age of 14 signed the will in Henry’s presence, and that the will copy was a true

and correct copy of the March 13, 1999 will. In issue three, George argues that the

evidence is factually insufficient to show that the March 13, 1999 will was executed

with the formalities and solemnities required to make it valid because (1) the

signature on the will was not Henry’s; (2) Wanda was an incompetent witness

because she was a devisee; (3) Darryl was an incompetent witness because “he

admitted in his [much later] application for appointment as administrator that he is

an ‘interested person’”; (4) Henry did not publish the will because he never declared

to anyone on March 13 that the will was his, he did not request that anyone sign it as

a witness, and no one (allegedly including Henry) read the will or knew its contents;

(5) the will’s fourth page was not a part of the will; and (6) “[t]he contents of what

Henry . . . knowingly and voluntarily executed, if anything, are unknown” because

“suspicious circumstances abound.”

a. Execution

Because we must examine both the evidence supporting and that contrary to

the judgment in our factual-sufficiency review,

we begin with the evidence

supporting the verdict. When viewed in the light most favorable to the verdict, the

following evidence supports the jury’s implicit finding that the March 13, 1999 will

was validly executed. Yancy testified that Henry signed the will while Wanda and

Darryl were at his home, that Henry sat at his table while the witnesses signed the

will, that each of the witnesses walked up while Henry was sitting at the table and

signed his or her name to the will in Henry’s presence, and that the witnesses were

over 14 years of age. See Tex. Prob. Code Ann. § 59(a). She further testified that

Henry signed the will, that he signed her notary log twice that day in an attempt to get

a consistent signature, and that his signatures appeared different because his lack of

several fingers made his signatures “chicken scratchy.” See id. Traylor confirmed

that, although Henry was missing fingers, he could still hold a pencil with his hand

to write his initials; that his signature was inconsistent because of his illnesses; and

that the signature on the will copy was Henry’s. She also testified, “I don’t really

know anything about his hands getting stiff as a board because,” even after 1998, “he

did a good job of putting his self [sic] up on the bed” by using “that hand to pull

himself up.” The record also contains examples of Henry’s signature, made after

March 1999, from other contexts—from which evidence a rational jury could

conclude that Henry could sign his name in March 1999. Yancy testified that, on

March 13, 1999, Henry was over 18 years of age, was of sound mind, knew what he

was doing and what he was signing, knew who Wanda and Darryl were, and knew

what his property was and how much he had and that nothing would have led her to

believe that Henry did not know what he was doing that day. Darryl confirmed that

Henry was of sound mind when they came to sign a document at his home, that Darryl

and Wanda signed the document (which was Henry’s will) at Henry’s request and in

front of Henry while he was seated at the table, and that he and Wanda were over 14

years old. Collins also signed the will at the table at which Henry was seated.

Traylor had no doubts that Henry executed the March 13, 1999 will. This evidence

supports the jury’s finding that Henry signed the will, that the four individuals whom

the jury found were witnesses each signed the will in his presence, that Henry and the

witnesses were the requisite age at the time of the will’s signing, and that Henry was

of sound mind and knew what property he had on March 13, 1999. See id. §§ 59(a),

84(b), 85, 88(b)(1)–(2).

In support of his factual-sufficiency challenge, George relies on the following

evidence that does not support the jury’s verdict: there was evidence that the

signature on the will copy did not look like Henry’s, that he had not physically been

able to sign his name since before 1999, and that his hands were stiff as boards. We

hold that this evidence does not render the evidence supporting the complained-of

findings so weak as to be clearly wrong or manifestly unjust. See Cain , 709 S.W.2d

at 176 .

b. Henry’s Knowledge of the Will’s Contents

We begin our factual-sufficiency review with the following evidence, which

supports an implicit finding that Henry knew the will’s contents before he signed it.

See Plas-Tex, Inc. , 772 S.W.2d at 445 . Yancy testified that she crossed out the “J.”

in Henry’s name and changed the page number while Henry was sitting at the table

and before he or the witnesses signed the will, from which can reasonably be inferred

that Henry saw those changes being made. Yancy also testified that Henry had asked

her to draft the will in 1999 and generally told her what substantive provisions he

wanted in it; that the only article that she changed after Henry’s initial review of the

draft will, and at his direction, was clause IV, which concerned the care of his wife;

that she gave Henry a copy of the final version of the will, with clause IV’s alteration

and consisting of five pages, before the day of the signing; and that he was the one

who pointed out to her on the day of the signing that his middle initial was not “J.”

This evidence supports that Henry read the will, that the will consisted of five pages

when he read it, and that Henry knew its contents.

In support of his factual-sufficiency challenge, George relies on the following

evidence that does not support the complained-of finding. First, the will copy’s last

two pages undisputedly differed in font from that of the first three pages, and the last

two pages contained no definite references to the preceding three pages. Second,

Henry’s signature or initials did not appear on any page with testamentary

dispositions. Third, Yancy’s testimony about the number of pages in the will that she

gave to Henry to review was contradictory. Fourth, the last page of the will copy

appears to have the number “5” written over the number “2” in the space provided for

the will’s number of pages, and Yancy’s initials appear beside the change. We have

reviewed this evidence and the entire record, and we cannot say that the evidence

supporting the complained-of jury finding is so weak as to make the finding clearly

wrong and manifestly unjust. See Cain , 709 S.W.2d at 176 . As for Yancy’s

credibility and the weight to be given the circumstances that George claims were

suspicious, we note that these matters were generally for the jury. See Jackson , 116

S.W.3d at 761 .

c. Number of Pages

We start our factual-sufficiency review with the following evidence, which

supports the jury’s implicit finding that the March 13, 1999 will consisted of five

pages and its express finding that the will copy was a true and correct copy of the

will. See Plas-Tex, Inc. , 772 S.W.2d at 445 . Yancy testified that the will copy, a

five-page document that was admitted into evidence, was a correct copy of the actual

will that Henry had signed on March 13, 1999. See Tex. Prob. Code Ann. § 84

(requiring that “the contents of such will [that is not produced in court] . . . be

substantially proved by the testimony of a credible witness who has read it or heard

it read.”). This evidence supports the jury’s express finding that the will copy, which

consisted of five pages, was a true and correct copy of the March 13, 1999 will.

George relies on the same evidence, set out in the immediately preceding

section, that does not support the jury’s complained-of finding. We have already

discussed why that evidence does not render the evidence supporting the complained-of jury findings so weak as to make them clearly wrong and manifestly unjust. See

Cain , 709 S.W.2d at 176 .

d. Publication

We also reject George’s factual-sufficiency challenge based on lack of

publication. First, we have already held that Texas law does not require the testator

to publish the will to the witnesses. See Davis , 45 S.W.2d at 241 . Therefore, it was

immaterial that Collins did not read the will, or that Henry did not speak to her about

it, before she signed the will. See Leeder , 161 S.W.2d at 1114 (“It is not necessary

for the subscribing witnesses to know the contents of the will. He is simply a witness

to the signature of the testator.”); Davis , 45 S.W.2d at 241 (“Generally, it is not

essential to the validity of a will that it should be read over to the witnesses thereto,

nor that they should know its contents.”); Warren v. Ellis , 137 S.W. 1182, 1187 (Tex.

Civ. App.—Galveston 1911, no writ) (“The statute does not require that the witness

shall sign at the request of the testator, but if that were required we think that it might

be inferred” under facts of that case, which indicated an implicit request). Neither

was it material that Darryl did not know when he entered Henry’s house that he was

going to sign a will or that he did not know what he signed or on what day he signed

it. See Davis , 45 S.W.2d at 241 (“In this state, the law . . . does not require . . . that

the testator inform the attesting witnesses that the instrument to be attested is his will.

. . . [P]ublication of the will or knowledge of the attesting witness that the instrument

signed by him was a will are not required.”). Moreover, Darryl testified that, when

he went into Henry’s home, Henry said, “I just need you to come with your mom and

sign.” See Davis , 45 S.W.2d at 241 .

Second, even if the statute could somehow be read to require that the witnesses

know that they are signing a will ( i.e. , to require publication), the following evidence

supports that that requirement was satisfied with respect to Yancy, Collins, and

Wanda. Yancy drafted the will, and she testified that Henry contacted her and asked

her to come to his home so that he could sign the will. As for Collins, she testified

that she signed what she believed was a will; that she signed the will at the table at

which Henry was also sitting; that Yancy, her friend, had asked her to sign; and that

Collins knew what she was there for that day. Collins also saw Henry and Yancy

speaking before Collins signed, although she could not hear what they said. The

testator’s request that one sign his will as a witness may be implicit.

As for Wanda,

Henry told Yancy that he wanted her to witness the will because Wanda was to be the

executor and because he trusted her. Yancy testified that she “ma[d]e plans” to get

the witnesses to the will signing, although she also said that Henry was the one who

did so. In any event, Wanda had a conversation with Henry at his house on March

13, 1999, although Yancy did not overhear that conversation, and, according to

Yancy, it would be fair to say that Wanda knew that she was there that day to sign a

will and that Wanda “knew that she was executor and a beneficiary” under Henry’s

will. Additionally, as set out above, Darryl testified that Henry told them that day that

“I just need you to come with your mom and sign.”

George offers no record references to evidence the contrary, only general

statements that “Henry Brown never declared to anybody on that date that the will

copy was his will” and that he “did not request that anybody sign the will as an

attesting witness.” Collins gave conflicting testimony as to whether she knew that

what she signed was a will, but credibility issues are generally for the jury. See

Jackson , 116 S.W.3d at 761 . Having reviewed the entire record, we cannot say that,

even if publication were required, the evidence supporting an implicit finding of

publication would have been so weak as to have rendered that implicit finding clearly

wrong and manifestly unjust. See Cain , 709 S.W.2d at 176 .

e. Witness Credibility

We also reject George’s factual-sufficiency challenges based on the

competency of the subscribing witnesses. A “credible” witness is a competent

witness. Triestman , 838 S.W.2d at 547 . “A competent witness to a will is one who

receives no pecuniary benefit under its terms.” Id. The following evidence supports

the jury’s finding that the will was properly witnessed. The jury expressly found that

Yancy was a witness. Yancy testified that she signed the will as a notary and that she

was a witness and that Henry was of sound mind, knew what he was doing and what

he was signing, and knew what his property was and how much he had on the day that

he executed the will. She also testified that Henry instructed her on how to draft the

will’s substance and to matters indicating that she understood that Henry had

reviewed the will before signing it. She signed after an attestation clause that recited,

among other things, that Henry had personally appeared before her and that he had

declared to the witnesses that the instrument was his will. She was not a beneficiary

under the terms of the will. A notary may be considered, and can be competent to be,

a subscribing witness to a will.

Neither was Darryl an incompetent witness for the

reason that George argues on appeal, which was that Darryl alleged in January 2005,

in his application for his appointment as administrator, that he “[wa]s a person

interested” in the estate. Whether a witness is credible, as required by section 59(a),

is ascertained at the time of the witness’s signing the will. Cf. id. (providing, “A

competent witness to a will is one who receives no pecuniary benefit under its

terms [,]” and “The will itself constitutes some evidence that the witnesses were

credible to attest the will at the time the will was executed. ”) (emphasis added). Later

events cannot affect the witness’s status as a competent witness, at the relevant time,

to the will’s execution. Accordingly, even assuming without deciding that Darryl’s

January 2005 allegation could somehow prevent his being a credible witness if he had

witnessed a will after January 2005, that 2005 allegation could not affect his

credibility to sign a will in 1999. Darryl was not a beneficiary under the March 13,

1999 will, and George points to nothing else in the trial record showing that Darryl

was not a credible witness when he signed the will.

Cf. id. (“The will provides no

pecuniary benefit to either witness. The will itself constitutes some evidence that the

witnesses were credible to attest the will at the time the will was executed.”).

In contrast, it is undisputed that Wanda was not a credible witness at the time

that she signed the will—not for having been named executor,

but for having been

a devisee. See id . However, Wanda’s testimony was not required to establish

Henry’s will:

Yancy’s testimony alone sufficed to do so, which itself was

corroborated by testimony of various other witnesses. See Tex. Prob. Code Ann.

§§ 84(b)(1), 85. Moreover, the Probate Code requires that only two credible

witnesses attest the will, and we have already held that the three other

witnesses—Darryl, Yancy, and Collins—were competent to do so. See id. § 59(a).

Therefore, the will would not fail if Wanda were considered an incompetent witness.

See id.

f. Conclusion

We have reviewed the entire record, and we cannot say that the evidence

supporting the complained-of jury findings is so weak as to have rendered the

complained-of findings clearly wrong and manifestly unjust. See Cain , 709 S.W.2d

at 176 . As for witness credibility and the weight to be given witnesses’ testimony,

these matters were for the jury. See Jackson , 116 S.W.3d at 761 .

We overrule issue three in its entirety.

3. Non-Production

In part of issue six, George argues that the evidence is factually insufficient to

establish satisfactorily the cause of Traylor’s non-production of the will.

Because we must examine both the evidence supporting and that contrary to

the judgment, our factual-sufficiency analysis begins with evidence supporting the

implicit finding that Traylor satisfactorily demonstrated the reason for her not having

produced the original will. See Plas-Tex, Inc. , 772 S.W.2d at 445 . Yancy testified

that she left the original will with Henry on March 13, 1999 and that she did not have

access to the original will afterwards. She also testified that she saw the original will

on April 16, 2001, after Henry’s death, in George’s possession and that that was the

first time since March 13, 1999 that she had seen the original will. According to

Yancy, the will that George had that day had the original signatures and notary seal.

Traylor confirmed that George retrieved the will from Henry’s house on April 16,

2001. George’s counsel admitted into evidence an affidavit, by Robert Anderson,

attesting that (1) Henry gave him his will, asking Anderson to give the will to George

upon Henry’s death, and (2) Anderson gave the will to George after Henry’s death.

Traylor confirmed Anderson’s affidavit testimony, based on what Anderson had told

her, except adding that Henry gave Anderson the will in an envelope. George also

admitted that he was the only person who had the keys to Henry’s house and to the

burglar bars on it and that the burglar bars were locked after Henry died. In fact,

George admitted retrieving Henry’s pre-need funeral plan papers from a box on

Henry’s bedside table soon after Henry’s death. This evidence supports the implicit

finding that Traylor satisfactorily proved why she had not produced the March 13,

1999 will—that is, that George, not she, last had the original will in his possession.

See Tex. Prob. Code Ann. § 85 (requiring that “the cause of [the written will’s]

non-production . . . be proved” and that “such cause . . . be sufficient to satisfy the

court that it cannot by any reasonable diligence be produced . . . .”).

In response, George articulates the following five arguments in support of his

factual-sufficiency challenge. First, he argues that the above evidence is factually

insufficient because “Yancy failed to articulate any visually identifiable

characteristics of the alleged original as the basis for her opinion. ” However, Yancy’s

testimony that she observed the original signatures and notary seal on the document

that George had on April 16 is some evidence to the contrary. Moreover, whether she

was a credible witness on this subject, and what weight to give her testimony, were

matters for the jury to resolve and do not make the evidence factually insufficient.

See Jackson , 116 S.W.3d at 761 .

Second, George argues that “Yancy is incompetent to testify about ink or other

markings on paper” and so to testify about whether she saw the original will in

George’s possession on April 16. We seriously doubt that only an expert may testify

to the originality of a document when, as here, the lay person who testified to the

document’s originality was the very one who created the document and observed its

signing. Nonetheless, even if George were correct, he does not direct us to any place

in the record that he objected to Yancy’s testimony on the basis that only expert

testimony could prove originality; accordingly, his challenge is waived. See Tex. R.

App. P. 33.1(a)(1).

Third, George argues that Anderson’s affidavit testimony that Henry gave him

a “will” is “an unsubstantiated legal conclusion that Anderson himself contradicted

when he told Traylor that he did not know what was in the envelope” that Henry had

given him. Whether Anderson knew that the document that Henry gave him was a

will was a contradicted factual matter—Anderson’s affidavit showed an

understanding that the document was a will, while Traylor’s testimony relating what

Anderson had told her indicated that Anderson did not know that—for the jury to

resolve. See Jackson , 116 S.W.3d at 761 .

Fourth, George argues that Traylor judicially admitted that “George Brown

never possessed an original of the will copy” because she testified that George’s

Exhibit eight, which was undisputedly a copy of the will, was what George had had

in his possession on April 16, 2001. However, “‘[a] judicial admission must be a

clear, deliberate, and unequivocal statement’ . . . .” Horizon/CMS Healthcare Corp.

v. Auld , 34 S.W.3d 887, 905 (Tex. 2000) (quoting Regency Advantage Ltd. P’ship v.

Bingo Idea–Watauga, Inc. , 936 S.W.2d 275, 278 (Tex. 1996)). Traylor’s was not

such a statement. She testified:

Q:Do you recognize [George’s Exhibit eight]?

A:Yes.

Q:When was the first time you saw it?

. . .

A:At George’s—at Henry Brown’s house.

. . .

Q:Are you sure this is what you saw?

A:Right.

Q:With the little brown stain on it?

A:Yes.

Q:Does this look like an original to you?

A:Right.

This is not a clear and unequivocal statement that George was not the last

person to possess the original will. Rather, it is a statement that Traylor thought that

that exhibit was an original. Moreover, Traylor testified both that she was “sure” that

Exhibit eight was the actual document that George held and that the exhibit “look[ed]

like an original” to her. Given her statement that the exhibit “look[ed] like” an

original, when it undisputedly was not, her further testimony that she was sure that

Exhibit eight was what George had possessed on April 16 was not a clear and

unequivocal statement that he had possessed only a copy of the will on that date.

Fifth, George argues that the evidence is factually insufficient because (1)

Yancy’s testimony was contradictory and speculative and (2) Anderson’s affidavit

testimony was incredulous and based on surmise and conjecture. The jury was

entitled to determine the weight to give the conflicting testimony and to determine

which witnesses were credible. See Jackson , 116 S.W.3d at 761 . The jury’s

resolution of those issues does not, on this record, make the evidence supporting the

complained-of jury findings so weak as to render those findings clearly wrong and

manifestly unjust. See Cain , 709 S.W.2d at 176 .

We have reviewed the entire record in the light required for a factual-sufficiency review, and we conclude that the evidence supporting the complained-of

implicit finding is not so weak as to render that finding clearly wrong and manifestly

unjust. See Cain , 709 S.W.2d at 176 . We thus hold that the evidence is factually

sufficient to establish satisfactorily the cause of Traylor’s non-production of the

March 13, 1999 will. See Tex. Prob. Code Ann. § 85.

We overrule this portion of issue six.

4. Non-Revocation

The jury expressly found that Henry did not revoke the March 13, 1999 will.

In the remainder of issue six, George argues that the evidence was factually

insufficient to support the jury’s express finding that Henry did not revoke the March

13, 1999 will. Because we must examine both the evidence supporting and that

contrary to the judgment, we begin with the evidence supporting the judgment. See

Plas-Tex, Inc. , 772 S.W.2d at 445 . Yancy testified that, to her knowledge, Henry

never revoked the March 13, 1999 will by tearing or destroying it after its execution.

See 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.”). Traylor opined that she did not feel that Henry would ever change the

March 13, 1999 will because “usually whatever Mr. Brown said, Mr. Brown did.”

Moreover, Yancy testified that she saw the original will in George’s possession

within days of Henry’s death, and Anderson’s affidavit and Traylor’s testimony

indicated that Anderson gave the will to George—all of which testimony supports the

jury’s finding that Henry did not destroy the March 13, 1999 will and that, instead,

George destroyed it. See Tex. Prob. Code Ann. § 63 (Vernon 2003) (“No will in

writing, and no clause thereof or devise therein, shall be revoked, except by a

subsequent 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. ”) (emphasis added); In re Capps , 154 S.W.3d at 245 (“True, an original

will’s absence [when last seen in testator’s possession] creates a rebuttable

presumption of revocation; but that presumption can be overcome by proof and

circumstances contrary to the presumption or that it was fraudulently destroyed by

some other person.”).

George first responds that Traylor “failed to trace an original of the will copy

to the hands of any other person” besides Henry, with whom she left it on March 13,

1999. However, the evidence was disputed as to whether the original will was last

in the hands of George. The evidence supporting that George last possessed the

original will was not so weak as to make the jury’s finding clearly wrong or

manifestly unjust. George next argues that “there are no circumstances contrary to

the presumption of revocation in this case.” The immediately preceding paragraph,

however, outlines such evidence. Finally, George argues that Traylor’s and Yancy’s

testimony that they did not forge the will “is self-serving, and of ‘no material

significance,’ in rebutting the presumption that the will copy was revoked.” Even if

George were somehow correct that Yancy’s and Traylor’s denial of forgery was

incompetent evidence, Yancy also testified that she saw the original will in George’s

hands within days of Henry’s death, and Anderson averred that Henry had given him

the will to give to George and that Anderson gave the will to George. Although

George controverted that evidence in various ways, the resolution of that evidentiary

conflict involved, in large part, a determination of witness credibility, which was the

jury’s province. See Jackson , 116 S.W.3d at 761 .

George also relies on the following evidence or arguments: (1) Henry tried to

execute a different will on his deathbed; (2) Henry did not mention the March 13,

1999 will to anyone but Yancy;

and (3) Yancy’s, Anderson’s, and Traylor’s

testimony was contradictory or incredible. These matters of witness credibility were

properly left to the jury. See id . Moreover, we have reviewed the entire record in the

light required for a factual-sufficiency review, and we cannot say, even in light of the

evidence on which George relies, that the evidence supporting the complained-of jury

finding is so weak as to render that finding clearly wrong and manifestly unjust. See

Cain , 709 S.W.2d at 176 . We thus hold that the evidence is factually sufficient to

support the jury’s finding that the March 13, 1999 will was not revoked. See Tex.

Prob. Code Ann. § 88(b)(3).

We overrule the remainder of issue six.

5. Forgery

The jury expressly found that the will copy was not forged. In issue four,

George asserts that the evidence is factually insufficient to support the jury’s negative

finding on his forgery cause of action. Because we must examine both the evidence

supporting and that contrary to the judgment, we begin with the evidence supporting

the judgment. See Plas-Tex, Inc. , 772 S.W.2d at 445 . Yancy denied having forged

Henry’s name on the March 13, 1999 will. This testimony, as well as the evidence

outlined in our earlier discussions, supports the jury’s finding that the March 13, 1999

will was not forged.

George relies on the following to show that the jury’s adverse finding on

forgery was against the great weight and preponderance of the evidence. First, he

argues that “the lack of evidence that anybody ever made a copy it [sic] indicates that

somebody forged the will copy, especially in this case where Henry Brown depended

so heavily on others for assistance.” However, both parties introduced a copy of the

document that Traylor alleged to be the March 13, 1999 will, and the jury found that

that copy was a true and correct copy of the will: there was thus not a “lack of

evidence” that the will was copied. In any event, even if a copy of the will had not

been made, the jury could have interpreted that fact to mean that Henry simply had

not had the will copied, not that the will had been forged. Second, George argues that

“Yancy gave clear, direct and positive testimony that she added an unidentified page,

and that the only change to the [1999] will copy that Henry Brown knew about or

consented to was Yancy [sic] correcting the spelling of his name. This is direct

evidence that Henry Brown did not know about or consent to Yancy’s page

substitution(s).” However, we have already outlined Yancy’s testimony that, albeit

at times conflicting, indicated that she made the page change in Henry’s presence and

before he signed the will and that Henry had all five pages of the will to review before

he signed. Accordingly, it is simply incorrect to imply that she gave uncontradicted

testimony that Henry did not approve or know of the page changes; furthermore,

because her testimony on this point was somewhat conflicting, it was the jury’s

province to resolve her credibility on this matter as it did.

We have reviewed the entire record in the light required for a factual-sufficiency review, and we cannot say that the jury’s negative finding on forgery is

against the great weight and preponderance of the evidence. See Francis , 46 S.W.3d

at 242 . We thus hold that the evidence is factually sufficient to support the jury’s

finding that the March 13, 1999 will was not forged.

We overrule issue four.

Appointment of Substitute Dependent Administrator

On February 25, 2005, just over two months after the final judgment from

which George appealed, the trial court granted Darryl’s application to remove Traylor

as dependent administrator of Henry’s estate and to appoint himself in her place. In

issue eight, George argues that the trial court erred in appointing Darryl as dependent

administrator.

We lack jurisdiction over this challenge. George filed his notice of appeal on

October 12, 2004 from the original final judgment, and his supplemental notice of

appeal on December 2, 2004 from the amended final judgment. Assuming that the

complained-of order appointing Darryl as successor dependent administrator is

appealable,

the record contains no notice of appeal from it. We have no subject-matter jurisdiction, in this appeal, to consider a totally independent, appealable order

from which no appeal has been perfected. See Tex. R. App. P. 25.1(b) (“The filing

of a notice of appeal by any party invokes the appellate court’s jurisdiction over all

parties to the trial court’s judgment or order appealed from. ”) (emphasis added); Tex.

R. App. P. 25.1(d)(2) (“The notice of appeal must: . . . state the date of the judgment

or order appealed from . . . .”); see also Velasquez v. Harrison , 934 S.W.2d 767, 770

(Tex. App.—Houston [1st Dist.] 1996, no writ) (holding that appellate court lacks

jurisdiction to consider appeal that is untimely perfected).

Consequently, we do not consider issue eight.

Conclusion

We reverse that portion of the judgment of the trial court that awarded

attorney’s fees to Traylor. We affirm the judgment in all other respects. We remand

the cause for the consideration of the amount of reasonable and necessary attorney’s

fees that Traylor incurred in pursuing the probate of the March 13, 1999 will.

See

Tex. R. App. P. 44.1(b). This is a limited remand. See Hudson v. Wakefield , 711

S.W.2d 628, 630 (Tex. 1986); Hansen v. Acad. Corp. , 961 S.W.2d 329, 331 (Tex.

App.—Houston [1st Dist.] 1997, pet. denied).

George’s motion to supplement his brief with an additional issue is denied .

His accompanying motion to take judicial notice is denied as moot.

Tim Taft

Justice

Panel consists of Justices Taft, Higley, and Bland.