Kinley v. Glenn

PEEK, J. This is an appeal by John Cary Kinley and Daniel D. Kinley, the sons and sole surviving heirs of decedent, from an order of the trial court determining that they were not entitled to succeed to any portion of the estate of decedent.

On March 17, 1952, Gerald D. Glenn, as executor, filed his petition for probate of the will of decedent dated November 30, 1951. The will, after the customary paragraphs relative to soundness of mind, lack of undue influence or fraud and revocation of all former wills, provided that Glenn who was named as executor to serve without bond, was to receive all of the property of which the testator died possessed; and that the testator’s body was to be cremated. Article 5 of the will provided:

“If any person should assert a claim to my estate or any part thereof, other than the devisee named, or should institute any contest to this will, then to such person or persons I bequeath the sum of One Dollab and no more.”

Following the order admitting the will to probate, the two sons filed their petition for distribution of the estate to themselves as pretermitted heirs. On April 7, 1953, a hearing was had on said petition. The minute order entered at the conclusion thereof states in part that witnesses were sworn and documentary evidence was introduced. Specifically referred to were two exhibits of petitioners which were not admitted in evidence but were marked 1 and 2 for identification. The order then states “. . . the hearing on said petition at this time be continued generally.”

On June 25, 1953, and prior to either a further hearing or order of the court pursuant to the April 7 order, Glenn as executor filed a petition for probate of a prior will dated March 19,1951. This will, after making the same introductory statements and the same dispositive provisions to Glenn as those contained in the November will, provided in article 5, “I purposely refrain from making any bequests to my sons, Daniel D. Kinley of Cincinnati, Ohio, and John C. Kinley of Houston, Texas, for reasons good and sufficient unto myself.” The will also contained an identical provision as to contest but made no mention concerning cremation of the testator’s body. On March 11, 1954, the court entered its findings and [496]conclusions of law and decree determining heirship. Therein it was found:

“IV.

“That it was the intention of the testator that the first Will be revoked only if the second Will was legally effective; that it was the intention of the Testator that in the event that the second Will would amount to intestacy in so far as the disposing portions were concerned, the first Will remained legally effective, and the provisions of the Will which disinherited the petitioners herein, Daniel D. Kinley and John Cary Kinley, were effective for that purpose, and the portion of the Will which disposed of the entire estate to Gerald D. Glenn was legally effective.