ON APPLICATION FOR WRIT OF ERROR

This case involves a will contest between a will beneficiary and intestate heirs. The issue before the court of appeals was whether there was sufficient evidence to support the jury’s finding that the will was not revoked by the testatrix. The court of appeals held a presumption of revocation arises when a will is not produced in court, and the will was last seen in the possession of the testatrix or in a place to which she had ready access. 744 S.W.2d 197 (Tex. App. 1987). W.I. Bennett and other intestate heirs have asserted that the presumption that the will had been revoked could be overcome only by clear and convincing evidence.

The court of appeals correctly held that the standard by which the sufficiency of the evidence should be reviewed is by a preponderance of the evidence. Those cases in which courts of appeal have held that the standard of review is by clear and convincing evidence are hereby disapproved. See Dodd v. Peoples National Bank, 377 S.W.2d 760 (Tex.Civ.App.—Texarkana 1964, no writ); Harris v. Robbins, 302 S.W.2d 225 (Tex.Civ.App.—Amarillo 1957, no writ); Bailey v. Bailey, 171 S.W. 2d 162 (Tex.Civ.App.—Amarillo 1943, no writ).

A majority of the court denies the application for writ of error filed by W.I. Bennett and others.