. . . 

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 in your letter of March 29, 1957, which is as follows: 

“I would like to have your opinion based upon 

the following facts: John Doe made a will 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. On March 11, 1957 John Doe 

died without issue. He has no living brothers or 

sisters o,r children. 

“It is my opinion that the 1956 will lapsed 

when his wife died. Then it presents a question as 

to whether or not the making of the 1956 will had 

the effect of cancelling or causing the 1953 will to 

lapse. 

*It is my desire to know whether or not the 

1953 will could be probated or if it is a legal will 

subject to being probated; or whether or not his 

property is subject to escheat. In other words, it 

may become my duty for and in behalf 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 of more 

specific information. First, we assume that the will of 1953 was 

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 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 .* 
. . - 

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

This section of the Probate Code is merely a re-enactment of 

Article 8285, Vernon’s Annotated Civil Statutes. 

A will may not be revoked in any other manner than 

that prescribed by the foregoing provislon of the Probate Code. In 

other words, a will may be revoked only by the execution of a subsequent will in writing executed with like formalities as the will 

sought to be revoked, or by the testator destroying or canceling the 

same or causing it to be done in his presence. Ragland v. Wagener, 

142 Tex. 651, 180 S.W.2d 435 (1944). If we be correct in our 

assumption that the 1956 will revoked the 1953 will in the manner 

prescribed by the statute, then we can put aside the 1953 will without further notice. 

This brings us to the consideration of the subsequent or 

the 1956 will which we assume was in writing and executed with the 

necessary statutory prerequisites to make it a valid will. We 

assume that the 1956 will 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 of the wlfe prior to 

the death of the husband, the testator. Logan v. Thomason, 146 Tex. 

37, 202 S.W.2d 212 (1947). Thea in that event the husband died 

intestate and his property would descend according to the law of 

descent and distribution as provided in V.A.T.S. Probate Code, 338. 

You state in your 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 if the testator died without living heirs is his estate subject to 

escheat. We are not justified 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 of more specific 

information. 

s UMMARY 

A prior will may be revoked only by the 

execution of a subsequent will or declaration in writing executed with the same 

formalities or by destroying or canceling 

the same or causing it to be done in the 

presence of the maker. If the sole 

beneficiary of an estate under a will, 

without any qualification, limitation or 

remainder, dies prior to the test&or, 

such an estate lapses, resulting in the 

testator dying intestate and the estate 
Hon. 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 a person 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