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• Title: Mary Amelia Hutchins Triestman v. Nancy Hutchins Kilgore
• Author : Supreme Court of Texas NO. D-2609
• Release Date : January 14, 1992
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 72 KB

Description

Per Curiam This case involves the probate of the will of William Merritt Hutchins, deceased. The probate court admitted the
will to probate. Nancy Hutchins Kilgore, a named legatee under the will, appealed the probate order by writ of error. The
court of appeals reversed the probate order, holding that there was no evidence presented by the will proponents that the
attesting witnesses were credible on that date. 829 S.W.2d 295, 299-300. The Probate Code requires every last will and testament, if not wholly in the handwriting of the testator, to be attested
by two or more "credible witnesses." TEX. PROB. CODE ANN. § 59(a) (Vernon Supp. 1992). It is long settled that "credible witness"
is synonymous with "competent witness." Lehmann v. Krahl, 155 Tex. 270, 285 S.W.2d 179, 180 (Tex. 1955); Gamble v. Butchee,
87 Tex. 643, 30 S.W. 861 (1895); Kennedy v. Upshaw, 66 Tex. 442, 1 S.W. 308 (1886); Brown v. Pridgen, 56 Tex. 124 (1882);
Nixon v. Armstrong, 38 Tex. 296 (1873). A competent witness to a will is one who receives no pecuniary benefit under its terms.
Scandurro v. Beto, 234 S.W.2d 695, 698 (Tex. Civ. App.--Waco 1950, no writ). See also Lehmann, 285 S.W.2d at 180 (husband
credible witness to will under which wife was legatee); Gamble, 30 S.W. at 862 (wife credible witness to will under which
husband was legatee). Conversely, a person interested as taking under a will is incompetent to testify to establish it. See
TEX. PROB. CODE ANN. § 61; Fowler v. Stagner, 55 Tex. 393, 397 (1881); Nixon, 38 Tex. at 298.

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