Adams v. Adams

• Citation: 253 S.W. 605
• Decision Date: 14 May 1923
• Docket Number: (No. 902.)
• Parties: ADAMS et al. v. ADAMS.
• Court: Court of Appeals of Texas

Page 605

253 S.W. 605

ADAMS et al. v. ADAMS.

(No. 902.)

Court of Civil Appeals of Texas. Beaumont.

May 14, 1923.

Rehearing Denied June 27, 1923.

Appeal from District Court, Jefferson County; W. H. Davidson, Judge.

Proceedings for the probate of the will of Elisha Adams, deceased, by Carrie E. Adams, contested by A. N. Adams and another. From an order admitting the will to probate, contestants appeal. Reversed and remanded for new trial.

W. R. Blain and A. L. Shaw, both of Beaumont, for appellants.

Gordon, Lawhon & Pool, Robt. L. Rodgers, and Sam C. Lipscomb, all of Beaumont, for appellee.

WALKER, J.

This is an appeal from an order of the district court of Jefferson county admitting to probate the last will and testament of Elisha Adams, deceased. His widow, Carrie Adams, was the chief beneficiary, and her application to probate the will was contested by A. N. Adams and Carrie Willard, his children by a former marriage. The grounds of contest were (1) want of testamentary capacity and (2) undue influence exercised by Carrie Adams over the testator in the execution of his will. Both issues were raised by the evidence. The trial was to a jury on special issues, submitted on the following charge:

"Gentlemen of the Jury:

"(1) The court instructs you that at the time of executing the document in controversy, bearing date of September 22, 1919, Elisha Adams was 21 years of age, and that all formalities and solemnities required by law were complied with, and that the said Elisha Adams signed said instrument on said date, and there are only two questions for you to consider: First, was Elisha Adams of sound mind at the time of the signing of said instrument? In other words, did he have testamentary capacity at said time? Second, was the execution of said will on the part of Elisha Adams procured through and by means of undue influence exerted upon him by Carrie Adams?

"(2) A person has `testamentary capacity' if at the time he executes a will his mind and memory is sufficiently sound to enable him to know and understand what he is doing and the effect of his act.

"(3) `Undue influence' as used in connection with the execution of wills is an influence exerted upon the testator which compels him to do that which is against his will from fear or desire of peace, or some feeling which he is unable to resist. This influence must be of such power and force as to destroy the will power and free agency of the testator, and result in the execution of a will which does not represent the wishes of the testator, but represents the wishes of the person exercising the influence.

"(4) In this connection you are instructed that the mere opportunity to exercise due influence, or influence occasioned by affection or acts of kindness by the person using the influence are not sufficient, and, in order to avoid a will on the ground of undue influence, this influence must have been exerted in relation to the will itself.

"(5) You are instructed that, if a person is of sound mind and memory, that is, that he has testamentary capacity when he makes a will, and such will is not procured by means of any undue influence, he has the right to make an unequal distribution of his property among persons who, without the will would have participated to a larger extent in his property under the general laws of descent and distribution. In other words, under those conditions he has the right to make any disposition of his estate he may see fit.

"(6) The burden rests upon Carrie Adams to prove to the satisfaction of the jury that Elisha Adams was of sound mind; that is, that he had testamentary capacity at the time of executing the will under consideration.

"(7) The burden of proving that the will was procured through undue influence on the part of Carrie Adams is upon the contestants.

"(8) You are the sole and exclusive judges of the facts proven, the credibility of the witnesses, and the weight of the evidence, but the law you must take from the court as given in this charge and in such special charges as may be given, if any, and be governed thereby.

"(9) Bearing in mind the foregoing instructions, you will answer the following questions:

"Issue No. 1: Did Elisha Adams at the time he executed the instrument of writing bearing date of September 22, 1919, and witnessed by J. D. McLain, F. R. Wilson and Jim Turner, and purporting to be his last will and testament, have testamentary capacity as that term has been defined? Answer `Yes' or `No.'"

[Answer: "Yes."]

"Issue No. 2: Was the instrument bearing date of September 22, 1919, and hereinbefore referred to, procured through undue influence exerted upon Elisha Adams by Carrie Adams as the term `undue influence' has hereinbefore been defined? Answer `Yes' or `No.'"

[Answer: "No."]

"(10) You will write your answers to these questions on a separate sheet of paper from this charge, letting your foreman, whom you will select, sign the same, using substantially the following form: To issue No. 1 we answer, ____; to issue No. 2 we answer, ____, filling in your answers to the questions propounded."

All the parties to this appeal are negroes.

Appellants make complaint of the refusal of the court to give certain special charges requested by them, submitting instructions to the jury on the law. These charges, as framed, were correctly refused, as all of them were on the weight of the evidence. Again, on the facts of this case, it is our judgment that they were correctly refused, because the charge as given was sufficiently full on all issues raised, without further instructions.

We also overrule all of appellants' exceptions to the court's charge, except to the fourth paragraph, which is as follows:

"In this connection you are instructed that the mere opportunity to exercise undue influence, or influence occasioned by affection or acts of kindness by the person using the influence, are not sufficient, and, in order to avoid a will on the ground of undue influence, this influence must have been exerted in relation to the will itself."

Unquestionably this charge embodies a sound legal proposition (Holmes v. Houston [Tex. Civ. App.] 241 S. W. 1039, and authorities there cited), but one for the guidance of the court in weighing the sufficiency of the evidence as against the jury's verdict, and not to be given in charge to the jury, a distinction now firmly established as a principle of our trial procedure (Carl v. Settegast [Tex. Com. App.] 237 S. W. 238). When we had that case before us (211 S. W. 506), on a thorough review of all the authorities in point we held that it was not error to give to a jury the measure by which the law itself weighs the evidence, in order that they might intelligently apply the evidence to the particular issues involved; but our holding was reversed by the Commission of Appeals, and it would no longer seem to be an open question in this state. Gallagher v. Neilon (Tex. Civ. App.) 121 S. W. 569; Buck v. Woodson (Tex. Civ. App.) 209 S. W. 246; Cornelius v. Burford, 28 Tex. 203, 91 Am. Dec. 309; Heldt v. Webster, 60 Tex. 207; White v. Epperson, 32 Tex. Civ. App. 162, 73 S. W. 851.

In his closing argument to the jury counsel for appellees committed error in the following respects:

(1) To give in full appellants' thirteenth bill of exception:

"Be it remembered that, upon the trial of the above entitled and numbered cause, the contestant, A. N. Adams, was asked on cross-examination by Sol E. Gordon, one of the attorneys for the defendant, whether or not, he, the said A. N. Adams, had brought his father, Elisha Adams, to the office of the said Sol E. Gordon some time during the month of September, 1919 (about the time of the execution of the will), and that the said A. N. Adams then asked Mr. Gordon if he desired him to state the facts with reference to his father's visit to Mr. Gordon's office, and thereupon testified that he had been in Mr. Gordon's office some time about the month of September, 1919, together with one F. R. Wilson consulting Mr. Gordon with reference to some matters in which he (witness) and the said F. R. Wilson were interested, and that as he was about to leave the office Mr. Gordon spoke to him with reference to his father's property, and asked him whether or not his father (Elisha Adams) had made a will, and that he (witness) replied that he did not know, and that he believed that his father was not in condition mentally to make a will, and that the said Sol E. Gordon then told him that if he would bring his father to his office he would discuss the matter with him, and that he thought he would be able to prepare a will which would stand in court, and that he (witness) brought his father to Mr. Gordon's office, but did not himself enter the office with his father, but left Elisha Adams in the office, and that he knew nothing of what transpired between him and Mr. Gordon, and that he afterwards sent an automobile to the Perlstein Building, in which Mr. Gordon's office was located, for the purpose of having his father taken home from the office; and, further, that the said A. N. Adams testified that he had never at any time attempted to persuade his father to make a will, and that he knew nothing of the execution of the will in controversy until after it was filed for probate; that the said Sol E. Gordon did not testify as a witness in that case, but failed to take the stand and testify with reference to said transaction, and that during the argument of the said Sol E. Gordon before the jury and in the closing argument in this case the said Sol E. Gordon, in discussing the testimony of the contestant, A. N. Adams, stated that no will was written by him, because in the conversation that took place between him, the said Sol E. Gordon, and Elisha Adams, it developed that Elisha Adams had already made a will, and for that reason a new will was not written, and that Elisha Adams refused to make another will, and further stated that, `as sure...