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April 15, 1957
Hon. J. 0. Duncan ww-95 District-County <Attorney Upshur County Re: Whether or not a certain 1953 Gilmer, Texas will can be probated, or if it is a legal will subject to being probated; or whether or not the Dear Mr. Duncan: property is subject to escheat.

You request the opinion of this office upon the questions presented inyour letter of March 29, 1957, which is as follows:

“I would like tohave your opinion based upon the following facts: John Doe made awill ln 1953 and subsequent thereto. in the year 1956, he made another will to his then living wife. She died on February 6, 1957, leaving three children by a previous marriage. OnMarch 11, 1957John Doe died without issue. He has no living brothers or sisters o,rchildren.

“It is my opinion that the 1956 will lapsed when his wife died. Then it presents aquestion as towhether or not the making of the 1956will had the effect of cancelling or causing the 1953will to lapse. *It is my desire to know whether or not the 1953will could be probated or if it is a legal will subject tobeing probated; or whether or not his property is subject to escheat. In other words, it may become my duty for and inbehalf of the State of Texas to take action to have his property pass to the State under our escheat law.* We shall assume certain facts in the absence ofmore specific information. First, we assume that the will of 1953was revoked by the subsequent will of 1956 in the manner prescribed by statute; that is, V.A.T.S. Probate Code, f63, which reads as follows:

“No will in’writing, and no clause thereof or

devise therein, shall be revoked, except by asubsequent will, codicil, or declaration inwriting, executed with like formalities, or by the testator destroying or canceling the same, or causing it to be done inhis presence .*.. -

Hon. J. 0. Duncan, page 2 (WW-95)

This section ofthe Probate Code is merely are-enactment of Article 8285, Vernon’s Annotated Civil Statutes.

A will may not be revoked inany other manner than that prescribed by the foregoing provislon of the Probate Code. In other words, awill may be revoked only by the execution of a subsequent will inwriting executed with like formalities as the will sought tobe revoked, or by the testator destroying or canceling the same or causing it to be done in his presence. Ragland v. Wagener, 142Tex. 651, 180S.W.2d 435 (1944). Ifwe be correct in our assumption that the 1956will revoked the 1953will in the manner prescribed by the statute, then we can put aside the 1953will without further notice.

This brings us to the consideration ofthe subsequent or the 1956will which we assume was inwriting and executed with the necessary statutory prerequisites tomake it avalid will. We assume that the 1956will bequeathed the entire estate, both real and personal, to the wife without limitation or remainder to anyone. If this be true, the bequest lapsed upon the death ofthe wlfe prior to the death of the husband, the testator. Logan v. Thomason, 146Tex. 37, 202 S.W.2d 212 (1947). Thea inthat event the husband died intestate and his property would descend according to the law of descent and distribution as provided inV.A.T.S. Probate Code, 338.

You state inyour letter that the testator died “without issue *. We assume that you mean by this “without children”, Died

‘?without issue” is not the same as saying &died without heirs”
. Only ifthe testator died without living heirs is his estate subject to escheat. We are notjustified in concluding from your letter that the testator died without heirs, even though he died without leaving brothers and sisters or children. The foregoing constitutes the most satisfactory answer we can give you in the absence ofmore specific information.



## sUMMARY

A prior will may be revoked only by the execution of asubsequent will or declaration inwriting executed with the same formalities or by destroying or canceling the same or causing ittobe done in the presence of the maker. Ifthe sole beneficiary of an estate under awill, without any qualification, limitation or remainder, dies prior to the test&or, such an estate lapses, resulting in the testator dying intestate and the estateHon. 3.0. Duncan, page 3(WW-95)

passes under the law of descent and distribution as,provided in V.A.T.S. Probate Code, 838. Property of aperson who dies intestate, leaving no living heirs is subject to es&eat. Articles 7272-3289, Vernon’s Civil Statutes. Very truly yours, WILL WILSON Attorney General

Assistant LPL:cs APPROVED: OPINION COMMITTEE H. Grady Chandler, Chairman Arthur Sandlin Richard Stone B. H. Timmins, Jr. REVIEWED FOR THE ATTORNEY GENERAL BY: Geo. P. Blackburn