Opinion
No. 3397.
September 17, 1936.
Appeal from District Court, Dallas County; Towne Young, Judge.
Application by Jackson Walker and Toledo Walker Tarver for the probate of the will of Nancy Johnson Ricks, deceased. Jackson Walker died, and from a decree admitting the will to probate, R. R. Ricks, contestant, appeals.
Affirmed.
J. L. Turner, of Dallas, for appellant.
Walter B. Branan, of Dallas, for appellees.
Jackson Walker and Toledo Walker Tarver, beneficiaries under the will of Nancy Johnson Ricks, deceased, filed application to probate the will of said decedent. Contest was filed by appellant Ricks, the surviving husband of the deceased. The will was admitted to probate in the county court. Contestant appealed to the district court. While the appeal was there pending, Jackson Walker died. Thereafter the will was probated in the district court.
Toledo Walker Tarver was entitled to apply for probate of the will. Article 3339, R.S. There was therefore no occasion to join the heirs of Jackson Walker after the latter's death.
Aside from certain suggestions of fundamental error appellant's propositions are all foreign to the ultimate issue before the court. Such issue was whether the instrument offered should be probated as the last will of the deceased. Article 3348, R.S., states the facts necessary to be proven in order to probate the instrument. Those facts were proven by undisputed evidence and the court properly admitted the will to probate. Any homestead right, or other interest in the estate of the deceased, which appellant may have, independent of the will, remains unaffected by the order of probate.
Simpkins Administration of Estates (3d Ed.) § 65; see, also, Prather v. McClelland, 76 Tex. 574, at page 584, 13 S.W. 543; Skeeters v. Hodges (Tex.Civ.App.) 270 S.W. 907; Harris v. Harris' Estate (Tex.Civ.App.) 276 S.W. 964, and Brown v. Burke (Tex.Civ.App.) 26 S.W.2d 415, 416. There is no fundamental error shown by the record. Affirmed.