The right of a person to devise property at his death to another is a purely statutory right. Poole v. Starke, 324 S.W.2d 234, 236 (Tex.Civ.App. — Fort Worth 1959, writ ref'd n.r.e.); Maxey v. Queen, 206 S.W.2d 114, 116 (Tex.Civ.App. — Fort Worth 1947, writ ref'd n.r.e.). If the requirements for disposing of property by will are to be altered, it is the province of the Legislature, not this Court, to effect those changes. It is significant to note the Legislature has amended section 59 of the Probate Code twice since the date of the Boren decision, but has not modified the statutory requirements at issue here. 1971 Tex.Gen Laws, Ch. 173, § 5 at 974; 1969 Tex.Gen Laws, Ch. 641, § 5 at 1922.
However, testamentary intent alone is not sufficient to a document if it lacks testamentary character by failure to dispose of property or appoint an executor. See Poole v. Starke (Tex. Civ. App.) 324 S.W.2d 234 (1959). The language of the "personal instructions" that Theodosen "turn over my said property as you, in your discretion deem best, over unto such charitable corporation" and "having full faith in your integrity and my trust in your ability to carry out my special desires" are precatory, in that the ultimate discretion in disposition of the property is given to Theodosen.
While the decedent's intention is controlling, the intent must be apparent from the writing and the circumstances surrounding its execution, the will cannot arise from the intent to make one alone. In re Hurley's Estate, 61 S.D. 233, 248 N.W. 194; Poole v. Starke, 1959, Tex. Civ. App. 324 S.W.2d 234. The writing must also be of a testamentary character to constitute a valid will.
It cannot be admitted to probate as Mr. Bell's last will and testament. Brackenridge v. Roberts (1924), 114 Tex. 418, 267 S.W. 244, rehearing overruled 114 Tex. 418, 270 S.W. 1001; Hinson v. Hinson (1955), 154 Tex. 561, 280 S.W.2d 731; Adams v. Maris (Comm. of App., 1919), 213 S.W. 622; Page v. Barnes (Tex.Civ.App., 1924, writ dismissed), 258 S.W. 264; Maxey v. Queen (Tex.Civ.App., 1947, writ refused, n. r. e.), 206 S.W.2d 114; Poole v. Starke (Tex.Civ.App., 1959), 324 S.W.2d 234, writ refused n. r. e. We hold this holographic instrument did not revoke Mr. Bell's 1948 will, and that the 1948 will should be admitted to probate upon proper proof.
1 Jarmon, Wills, p. 26 (8th ed.). To be testamentary, the language used must by fair construction be susceptible to a meaning to pass title to property when entered for probate. Also the intent of the testator must be ascertained alone from the meaning of the words used by him in the purported will. Huffman v. Huffman, Tex.Civ.App., 329 S.W.2d 139, affirmed 339 S.W.2d 885; Poole v. Starke, Tex.Civ.App., 324 S.W.2d 234. As was said in both of these Texas cases, the intent must be drawn from the purported will, not the will from the intent. The statute requiring wills to be in writing precludes ascribing to the testator any intention which he did not express in the instrument itself.
At least two intermediate courts of appeals have expressly re-stated its holding in this regard. SeeJohnson v. Hewitt , 539 S.W.2d 239, 241-42 (Tex. Civ. App.—Houston [1st Dist.] 1976, no writ) ; Poole v. Starke , 324 S.W.2d 234, 237 (Tex. Civ. App.—Fort Worth 1959, writ ref'd n.r.e.) ("A purported will is not entitled to probate where it neither disposes of property nor appoints an executor. ") (emphasis added).
See, e.g., In re Estate of Sola, 225 Cal.App.3d 241, 275 Cal.Rptr. 98 (1990); Matter of Estate of Muder, 159 Ariz. 173, 765 P.2d 997 (1988); Estate of Nielson, 105 Cal.App.3d 796, 165 Cal.Rptr. 319 (1980); Scott v. Schwartz, 469 S.W.2d 587 (Tex. Civ. App. 1971); Estate of Erbach, 41 Wis.2d 335, 164 N.W.2d 238 (1969); Poole v. Starke, 324 S.W.2d 234 (Tex. Civ. App. 1959). However, in those cases found wherein the purported holographic documents were invalidated, the courts relied in part upon a determination that the handwriting, standing alone, did not evidence a testamentary intent.
In other jurisdictions, it appears that a clause in a will which excludes heirs from sharing in an estate is not effective unless a valid disposition is made of all the property. Poole v. Starke, 324 S.W.2d 234 (Tex. App. 1959). Where all bequests lapse because of the death of a beneficiary prior to that of the testator and there is no residuary clause in the will, the property subject to the lapsed bequest passes under the laws of descent and distribution as intestate property.
A clause in the will excluding the heirs from sharing in the estate is not effective unless a valid disposition is made of all the property. Poole v. Starke, 324 S.W.2d 234 (Tex.App. 1959). In addition, although the will effectively excluded James Wallace Coleman, under the will or as a pretermitted child, it has not altered the amount to which appellant is entitled under the statute of intestate succession.
If the testator fails to make an effective disposition of his property to another (as in this case), the property will pass to his heirs at law under the laws of descent and distribution even though this might be against the testator's intention, however, plainly manifested. Najvar v. Vasek, 564 S.W.2d 202, 207 (Tex.Civ.App. Corpus Christi 1978, no writ); Poole et al. v. Starke, 324 S.W.2d 234 (Tex.Civ.App. Fort Worth 1959, writ ref'd n. r. e.); Adams v. Masterson, 415 S.W.2d 535, 536 (Tex.Civ.App. Dallas 1967, writ ref'd n. r. e.). Appellants' point of error is overruled. Since the findings of fact set forth specifically by the court in its judgment have not been challenged by any assignment of error, they stand as proven facts in this case.