# Kirk v. Beard > Court of Appeals of Texas · March 8, 1960 · 334 S.W.2d 531 URL: https://www.frixlaw.com/law-library/cases/9645888 ## Case - **Full name:** Agnes KIRK Et Al., Appellants, v. Lucille BEARD Et Al., Appellees - **Court:** Court of Appeals of Texas - **Decided:** March 8, 1960 - **Citations:** 334 S.W.2d 531; 1960 Tex. App. LEXIS 2146 - **Precedential status:** Published - **Opinion:** Concurrence by Chadick - **Judges:** Davis, Chadick, Fanning - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9645888 ## Opinion text CHADICK, Chief Justice (concurring). This is an independent study made without examination of any other opinion or opinions that may be filed herein. I have reached the conclusion that the trial court judgment should be affirmed. The appellants’ first 5 points of error are directed to the absence, insufficiency and weight of the testimony to support the verdict and judgment that W. H. (Henry) Sexton and his brother, J. M. (Jim) Sexton, made mutual wills. The essence of the evidence is this: Henry and Jim Sexton, both of whom lived and died unmarried, together went to the office of their attorney and Henry instructed the lawyer to prepare them separate wills identical in language except that each made the other the first beneficiary of his will. In the course of Henry’s instructions to the lawyer he stated that he and Jim had agreed upon the disposition of their property and the lawyer took the occasion to tell them his opinion of the effect of making wills as they directed and reminded them of their experience with identical wills when their brother John died, and cautioned them that they should not change the wills they were directing him to prepare except after consultation one with the other and that neither could sell his interest in the ranch mentioned in the will without the other joining in the conveyance, and that neither could revoke his will without the other’s consent. The wills as prepared were read to the brothers by the lawyer and the terms of the wills again explained to Jim and Jim agreed that the wills provided for disposition of his property the way he had in mind and that he and Henry had made the agreement to dispose of their estates in the way the wills provided in a talk with their sister Mary. Two witnesses testified to separate conversations with Jim prior to Henry’s death. In one of the conversations Jim stated that he could not sell the ranch land if he wanted to as he and his brother had made an agreement and prepared wills to that *540 effect. In the other conversation he purportedly stated that after their deaths, that is, Henry’s and Jim’s, the property would go to their nieces. Thus it is shown one brother in the presence of the other directed the lawyer in the preparation of the wills. Thereafter the lawyer advised them of his opinion of the legal effect of the wills. Following an explanation to both brothers, the lawyer directed an explanation to' Jim alone and with the contents of the will as prepared spread before him Jim Sexton stated that it represented the agreement with his brother. In addition to such evi-dentiary elements as the wills being prepared at the same time and by the same lawyer and being identical in language, except in each naming the other as first beneficiary, and statements made by Jim Sexton to apparently disinterested witnesses implying the making of wills by he and his brother Henry pursuant to some agreement, all of which has probative value under Hamilton v. Hamilton, 154 Tex. 511 , 280 S.W.2d 588 ; Pullen v. Russ, Tex.Civ.App., 226 S.W.2d 876 , wr. ref., n. r. e.; Nye v. Bradford, 144 Tex. 618 , 193 S.W.2d 165 , 169 A.L.R. 1 and Wagnon v. Wagnon, Tex.Civ.App., 16 S.W.2d 366 , wr. ref., in determining whether wills are mutual and contractual in nature, there was presented to the jury evidence that some agreement as to testamentary disposition of their property had been reached in a conference with their sister and that the wills as written incorporated or stated the terms of the agreement. Evidence subject to the foregoing conclusion and believed by the jury, as it was here, is sufficient to support the verdict and judgment entered. Necessarily, the evidence being sufficient, and there being no countervailing evidence to overwhelm it, appellants’ first 5 points are overruled. The appellants’ 6th point raises a serious question of whether or not the wills may be shown to be mutual and contractual in nature by parol evidence despite Section 4 of Art. 3995, Vernon’s Ann.Tex.Civ.St., the statute of frauds. Examination of the numerous cases brought to the attention of the Court where parol evidence was received to establish the concert of principals in the making of mutual wills shows that in only one, Larrabee v. Porter, Tex.Civ.App., 166 S.W. 395 , wr. ref., is the effect of the statute discussed, but since it was not invoked in the trial court as a defense, the appellate court made no determination of the question it presented. There are many cases holding that parol testimony is admissible for such purposes but the effect of the statute of frauds is not alluded to in them. Among these are Hamilton v. Hamilton, supra; Pullen v. Russ, supra, Bradford v. Nye, supra, and Wagnon v. Wagnon, supra. In any event Larrabee v. Porter, supra, is persuasive and seems to be in the current of authority pointed out in 169 A.L.R. page 43, Section 3. It appears that other jurisdictions besides Texas have long held parol testimony admissible for this purpose upon theories of consummated parol contract, es-toppel or expressed trust, depending upon the facts of the case. The facts here show a performance sufficient under the law of estoppel to support the admission of parol evidence to establish the agreement. Hooks v. Bridgewater, 111 Tex. 122 , 229 S.W. 1114 , 15 A.L.R. 216 , and the many cases following in its wake, relied on by appellant, are not controlling under the facts of this record. Here it is evident that more than a breach of contract will occur. A fraud would be worked upon Henry Sexton’s legal heirs if Jim Sexton should be permitted to take and keep Henry’s estate under Henry’s will and Jim’s contract to make a will as shown not be enforced. Exclusion of the parol testimony establishing the agreement would result in the application of the statute of frauds to perpetuate a fraud contrary to equity and good conscience. The 6th point must be overruled. Each of appellants' *541 other points of error have been examined but none show reversible error and all should be overruled. As before stated I am of the opinion that the judgment of the trial court should be affirmed, and concur in any opinion which may be filed affirming the judgment of the trial court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9645888. Public record. Not legal advice.