Untitled Texas Attorney General Opinion ( 1965 )

Honorable Robert S. Calvert Opinion No. c-466
Comptroller of Public Accounts
Austin, Texas Re: Proper distribution
for inheritance tax
purposes of the estate
of Lena Dishart Cohen
Dear Mr. Calvert: under submitted facts.
We quote the following excerpt from your letter requesting
the opinion of this office on the above captioned matter.
“We desire the opinion of your
office with respect to the proper
distribution for Inheritance tax
purposes of the Estate of Lena
Dishart Cohen, who died testate
a resident of El Paso County,
Texas.
“The decedent executed a type-
written will dated December 1,
1956. Subsequently,on December
16, 1957, the testatrix altered
the will in her own handwriting.
Please advise this Department what
effect this alteration had on the
terms and conditions of the original
typewrittenwill dated December 1,
1956,”
This typewritten will was properly executed by the testatrlx
and signed by subscribingwitnesses in due form. The
pertinent portion of the will Is contained in the second
paragraph and reads as follows:
“I give, devise and bequeath to
each of my sons, ANDREW Ii.COHEN
and SYDNEY H. COHEN, an equal life
interest in and to the property at
2329-2331 East Yandell Boulevard,
El Paso, Texas, together with the
various houses located thereon. In
the event of the death of either of
my sons, I dlr_ezcztZlthat
the entire
Honorable Robert S. Calvert, Page 2 Opinion No. C-466
Interest in and to said property
shall vest In my surviving son, (and
upon the death of said surviving son,
I give, devise and bequeath said
granddaughter,
property to my beloved/ANNE REZNIKOV,
absolutely.andin fee simple.)"
(the'word "granddaughter"was thus
inserted In the original will which
was double spaced.)
The testatrix drew a line through the last portion of
this paragraph thus ellmlnatlng "and upon the death of said
surviving son, I give, devise and bequeath said property to
my beloved granddaughter,ANNE REZNIKOV, absolutely and in
fee simple. In the margin of this will the decedent wrote
in her own handwriting the following statement:
"I, Lena D. Cohen made the changiD;f
crossed out 16 ~ec 1957
This statement Is followed by an arrow pointing to the
portion of the will through which lines had been drawn.
Section 63 of the Probate Code provides as follows:
"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
bv the testator destroying or cancel-
ing the same, or causing it to be done
In his presence."
The above quoted provision has been held to be mandatory,
clear and explicit. It Is also exclusive In application,
and revocation cannot be accomplished in other ways than
those prescribed. 61 Tex.Jur.2d 203, Wills, Sec. 90.
In Leatherwood v. Stephens, 24 S.W.2d 819 (T&x.Comm.
APP., 1939), the court stated that It was In full agree-
ment with the dissenting opinion filed In the Court of
Clvl,1 Appeals by Justice Stanford to the effect that the
names of beneficiariescontained in a will at the time
It was executed could not be changed or revoked except
In the manner provided by statute. At page 823, the
court said:
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Honorable Robert S. Calvert, Page~3 Opinion No. C-466
9,
.. .If the obliterationwere
made after the will was executed
by the testatrix or any one else,
such act was futile and amounted
to nothing. . . .'I
In Pullen v. Russ, 209 S.W.2d 630, (Tex.Civ.App.,error ref.
n.r.e., 1948) the court held that changes made by a testator
in.a properly executed will were ineffectiveand that the
will must be probated as originallywritten because such
changes were not made with the formalitiesrequired in
making a will.
Since it is thus well settled that a testator may
revoke his will as an entirety by cancellation or obllter-
ation, mere alteration of the terms of a duly executed will
by additions, erasures or other modifications Is of no
effect. For further authorities see those cited in 61 Tex.
Jur.2d 204, Wills, Sec. 91 and 12 Baylor L.R. 194.
You are therefore advised that the property passing
under this provision of the will should be distributed for
Inheritance taxes in accordance with the will as originally
drawn and executed.
SUMMARY
Testatrlx could not effectuate
cancellation of a provision in
a duly executed will by merely
drawing a line through said
provision and noting In the
margin in her own handwriting
that she had made such change.
Therefore property passing under
the will must be distributed for
inheritance tax purposes in
accordance with the provisions
of the will as originally executed.
Very truly yours,
WAGGONER CARR
Attorney General
MMcGP:dl Assistant
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Honorable Robert S. Calvert, Page 4 Opinion No. c-466
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Terry Reed Goodman
Wade Anderson
Gordon Zuber
Larry Craddock
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright
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