Barton v. Bailey
| Decision Date | 28 March 1947 |
| Docket Number | No. 2575.,2575. |
| Citation | 202 S.W.2d 277 |
| Parties | BARTON et al. v. BAILEY et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Coleman County; A. O. Newman, Judge.
Action by Jim Madison Barton and others against A. F. Bailey and others to set aside the probate of the will of B. A. Barton, deceased. The contest was denied by the county court and the contestants appealed to the district court. From a judgment of the district court against the contestants, they appeal.
Judgment affirmed.
Brooks, Duke & Templeton, of Abilene, and Clay Coggins, of Roby, for appellants.
W. Marcus Weatherred, of Coleman, for appellee.
B. A. (Bailey) Barton, a bachelor about 85 years of age, died in Coleman County, Texas, on November 12, 1945, leaving an estate consisting of 1882½ acres of land, 63 head of cattle, cash, bonds and other personal property, all of a total value of $60,000 or more. He had previously, on April 4, 1944, executed a will, which was admitted to probate by the County Court of Coleman County on November 26, 1945. The deceased left no surviving parents, brothers or sisters, and in said will he devised and bequeathed to his nephew, A. F (Frank) Bailey, a life estate in said entire estate, save and except as to some minor bequests, with remainder in fee simple to Harbert Anderson Bailey and Annie Therisa Dimbleby, son and daughter of said A. F. Bailey. The special bequests were to his nephew, Jim Madison Barton, and niece, known as Willie Barton, children of his deceased brother, William P. Barton, and to Lillie Jackson and Mary Alice Jackson, nieces of his deceased sister, Mary Elizabeth Barton, to each of whom he gave $100 in cash. The will was admitted to probate without contest. An inventory, appraisement and list of claims was filed and approved, and said A. F. Bailey duly qualified as independent executor without bond as provided for in the will.
However, on February 12, 1946, said Jim Madison Barton, Willie Barton Graham Hardy and husband, C. D. Hardy, Mary Alice Jones and husband, J. W. Jones, and Christene Ranft, filed in said County Court their petition to set aside the probate of said will. Said contest was heard and on April 6, 1946, denied, from which order, contestants gave notice of appeal to the District Court. Trial was had before a jury in the District Court, the court submitting the only two issues raised by the pleadings, to wit: (a) as to whether the deceased, B. A. Barton at the time of making said will had testamentary capacity, which issue was answered in the affirmative; and (b) whether said deceased at said time was acting under the undue influence of A. F. Bailey, Mrs. A. F. Bailey, Harbert Anderson Bailey and Annie Therisa Dimbleby, or either or all of them, which second issue the jury answered in the negative. In response to the jury verdict, on May 27, 1946, the court rendered judgment against contestants, from which judgment they have appealed to this court.
On the issue of the alleged incapacity of B. A. Barton to execute said will, contestants pleaded in substance: (a) that said purported will was not signed, declared and published by said deceased in the presence of attesting witnesses, or any two of them, nor did said witnesses subscribe their names thereto in the presence of B. A. Barton, nor in the presence of each other, nor at the special instance and request of B. A. Barton; (b) but if it be found as against said first allegation, then it was alleged that when he signed said will, said B. A. Barton was very seriously ill and suffering from intense mental and physical pain, as he had suffered long prior thereto and from which he afterward died; (c) that at said time, B. A. Barton's mind was so impaired that he did not know what he was doing; did not know the conditions of said will; did not know the nature and amount of his property or the objects of his bounty, their true names and relationship to him; and (d) at said time, B. A. Barton was not of sound mind or memory and not capable of making a will.
On the issue of undue influence, contestants pleaded that the execution of said will was wholly brought about through the undue influence of A. F. Bailey, Mrs. A. F. Bailey, Harbert Anderson Bailey and Therisa Dimbleby, and through the compulsion, duress, threats, persuasion and argument of said named parties, the free will and volition of B. A. Barton was destroyed and said B. A. Barton yielded on account of his desire for peace and quiet.
The said will having been previously admitted to probate, the burden was on contestants to establish their case by a preponderance of the evidence, and as illustrative of what our courts have held in such cases, and of the general rules of law applied, we quote a few expressions from recognized authorities. One of the most cogent statements we have found is by the distinguished Chief Justice Fly in the case of Cook et al v. Denike et al., Tex.Civ. App., 216 S.W. 437, 439:
As bearing upon the testator's capacity to make a will, the real test is whether at the time, he knew what he was about, whether he knew what property he owned, the objects of his bounty and understood the general effect of his will. 44 Tex.Jur. 558, 559, Sec. 17; Vaughan v. Malone, Tex.Civ.App., 211 S.W. 292 (error dismissed).
"The propounded instrument is sustained as a general rule where the evidence shows that the decedent personally instructed the draftsman as to its preparation;" 44 Tex. Jur. 601, Sec. 59; Vaughan v. Malone, Tex.Civ.App., 211 S.W. 292, "and the case of the proponent is strengthened by the circumstance that the decedent was alone with the draftsman, the proponent or beneficiary not being present." McKenzie v. Grant, Tex.Civ.App., 93 S.W.2d 1160; Taylor v. Small, Tex.Civ.App., 71 S.W.2d 895. "In favor of the proponent's case, it is to be considered that the draftsman was the decedent's attorney, and that the witnesses were honorable and competent persons." McKenzie v. Grant, and Taylor v. Small, supra.
"Where it is shown that the execution of the writing was supervised by a lawyer, much probative force attaches to his opinion that the instrument expressed the wishes of the decedent." 44 Tex.Jur. 601, 602, Sec. 59; In re Bartels' Estate, Tex. Civ.App., 164 S.W. 859 (Writ Ref.).
Pertinent to the issue as to undue influence, we quote from 44 Tex.Jur. 566, Sec. 25, as follows:
Whitney v. Murrie, Tex.Civ.App., 264 S.W. 270.
"`Persuasion, entreaty, cajolery, importunity, argument, intercession, and solicitation are permissible, and cannot be held to be undue influence unless they subverted and overthrew the will of the testator and caused him to do a thing he did not desire to do.'" Decker v. Koenig, Tex.Civ.App., 37 S.W.2d 378, which latter case gives an interesting and informative discussion of the identical issues involved in the case at bar.
Appellants produced three witnesses, the first and main witness being J. P. (Pink) Maberry, a distant relative of the testator, who lived in Fisher County about 150 miles from the home of the deceased. The witness had lived at said place about 60 or 61 years, and had known B. A. Barton during all of said period of time. Said witness testified that during the last 30 years, he would see B. A. Barton twice each year and sometimes oftener; that during the last 15 years, B. A. Barton had visited the witness at least four times, and stayed from three weeks to two months at a time; and that on such visits, B. A. Barton talked to witness freely about business and his health. In answer to objection of appellees' counsel as to remoteness of said conversations, the witness said it had been 12 or 15 years. One of said conversations related to two or three months spent by B. A. Barton at a Sanitarium at Santa Anna, during which time he disagreed with the doctors as to the nature of his ailment, said B. A. Barton insisting that "it was worms that was the matter with him". Witness visited B. A. Barton while he was in the Sanitarium, and saw him again in two, three or four months. Witness also received some letters from B. A. Barton, one of which was introduced in evidence. It was dated March 2, 1944, and expressed the desire that witness come to see him. Over objection, the witness was permitted to testify as to similar letters previously received, in which B. A. Barton would complain of feeling badly and invite the witness to visit him. The witness acknowledged that he had some of the letters and that others had been destroyed.
In response to said letter of March 2, 1944, the witness came...
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