Bass v. Bass, 9665.

• Citation: 207 S.W.2d 103
• Decision Date: 28 November 1947
• Docket Number: No. 9665.,9665.
• Parties: BASS et al. v. BASS.
• Court: Court of Appeals of Texas

Page 103

207 S.W.2d 103

BASS et al. v. BASS.

No. 9665.

Court of Civil Appeals of Texas. Austin.

November 28, 1947.

Rehearing Denied December 17, 1947.

Appeal from District Court, Victoria County; Howard P. Green, Judge.

Proceeding in the matter of the estate of Millard F. Bass, deceased, for admission to probate of a will propounded by Laura L. Bass and contested by Laura J. Bass, non compos mentis by next friend, and others. From judgment of the county court probating the will, contestants appealed to the district court. From the judgment, contestants appeal.

Affirmed.

Edw. C. Thomas, of Victoria, S. G. Sample, of Edna, and Putney & Ritchey, of Victoria, for appellants.

Crain, Vandenberg & Stofer, by J. V. Vandenberg, Jr., and F. H. Crain, Carsner & Carsner, by C. C. Carsner, and C. C. Carsner, Jr., all of Victoria, for appellee.

HUGHES, Justice.

This is a will contest. Laura L. Bass, appellee, is a daughter of and principal beneficiary under the alleged will (hereinafter called "will") of Millard F. Bass, deceased. Appellants are the remaining heirs at law of decedent and include his widow, five daughters, and two grandchildren.

The contest, filed in the county court, resulted in a judgment probating the will. On appeal to the district court trial was before a jury and at the conclusion of the evidence the trial judge instructed a verdict for appellee, and in accordance therewith rendered judgment sustaining the will.

The contest was based on two grounds: (1) testator's lack of mental capacity and (2) undue influence exercised upon testator by appellee.

Mental Incapacity.

Millard F. Bass died in Victoria County, August 26, 1944, at the age of about 89 years, leaving an estate of the reasonable value of $50,000.

The will in question was executed October 7, 1943, by testator signing with his mark.

Testator is shown to have made a will on February 5, 1935, in which he left his estate to his wife for life and remainder in equal shares to his nine children and $1,000 to a granddaughter.

On April 30, 1936, testator made a new will similar to his first will, except that he included another grandchild and virtually disinherited two sons.

By codicil dated April 25, 1939, another son was eliminated from the April 30, 1936, will.

By another codicil dated February 12, 1940, testator gave his wife the right to sell all or any part of his estate and to make mineral leases and provided for partition of his property.

Testator was about 88 years of age when the will of October 7, 1943, was made. He was then practically deaf, almost, if not totally, blind, confined to his bed and suffering with a cancerous condition of his sinuses or nose, which caused hemorrhages, leaving him in a weakened and stupid condition, with severe head pains and aches.

On the day of his making his last will he was a very sick man; his doctor was called and members of the family were summoned by telephone. The following day he was sent to a hospital and placed in an isolation ward. While there he raved and attempted to and did get out of bed. The nurse in the hospital was afraid of him and his bed was fenced to keep him in. He kicked, or attempted to kick, appellee.

It was shown that in 1936, shortly after the death of one of testator's sons, testator was very despondent and tried to kill himself with a knife, but was prevented by others present.

Only lay witnesses, all grandchildren of testator, expressed opinions that on October 7, 1943, testator was of unsound mind. The substance of their testimony is:

Estelle Noble.

Twenty-six years of age, a school teacher of 8 years experience and now employed in Edna High School. When quite small she visited in testator's home frequently, but in later years visits were 3 or 4 months apart, this because family relationship seemed broken and witness received no pleasure from visits. On each visit she saw testator. Death of uncle (son of testator) in 1936 was recalled. Witness attended funeral and saw testator who seemed "terribly disturbed" and stated over and over that he had nothing to live for after he lost his son. After son's death testator's physical condition changed for worse; spent most of his time in bed; could not see or hear and suffered with his head; had to be assisted to get out of bed. On October 7, 1943, testator suffered a hemorrhage, witness having been called home by her mother. Testator was pale and appeared very sick, was listless and had nothing to say. When asked how he felt replied that he was in bad shape and had never been in such condition before. Spots of blood were on bed clothing and floor. Appellee on this occasion told witness that a day or two before some gentlemen had been out to transact some business and had requested her to leave the room, and that testator had suffered a hemorrhage, was very sick, had been in a rage and out of his head a day or two before. Between 1936 and October 7, 1943, witness had observed her grandfather's mental condition. Three or four years before his death his mental capacity seemed to have weakened, he would repeat the same question three or four times in the course of a few hours. Testator had developed an unpleasant attitude towards his grandchildren and most of his children, and spoke slightingly of their business ability and ability to take care of themselves, and of their intelligence.

Laura Harris.

Thirty-seven years of age, married and has two children, worked two years at Foster Field as mechanic's helper, and has 98 semester hours of college credits at Praire View.

From 1936 to 1939 she saw testator often. During first three years after son's death testator was nervous and beginning to get irritable and rave and rant; his conversations were not agreeable. He criticized witness's marriage; told her she was a fool; that a woman's place was in the home and she was out of her place in working as a mechanic's helper, and asked her if she caused that last plane to crash.

Witness saw testator in hospital on October 8, 1943, and was not sure that he recognized her. Appellee told witness in presence of testator, on this occasion, that he took a drink of water and asked for the table, and finding none he said, "Looks like they could afford a bedside stand." Appellee told witness that testator "cut up so bad" that she had to keep table away, and also told her a screen was used to keep him in bed, and about his raving. Witness testified that testator was quieted down nicely when she got there. On Monday, October 10, 1943, testator told witness he was better, had no business in the hospital, and everybody was trying to rob him.

Appellee also told witness that her father, while in the hospital at that time, got mad and tried to "kick her out of the corner."

Witness saw testator next and for the last time on Christmas 1943. He was at home and in bed and was upset. He had a misunderstanding as to why the family was gathered.

This witness also testified to the physical break down of testator beginning in 1936, his blindness, deafness, hemorrhages and resulting lassitude and head pains and forgetfulness; and that appellee told her, "Don't mind papa. He is getting childish and feeble."

Octavia Cook.

Age 34, taught school 12 years, lacks 16 hours credit necessary to secure BA degree from Sam Huston College.

During last two or more years of testator's life she saw him every three or four months. In 1940, when testator was in the hospital, she read the newspaper to him and by reading loud he could understand. At this time he was very disagreeable, accused everyone of lying about the condition of his crops, and stated that he was hospitalized just so people could get his money. When witness attempted to wait on him he would have "rages" and he almost fell out of bed in one of these spells.

After a hemorrhage testator would be drowsy and stupid and have nothing to say.

Testator until about 1941 had been generous and liberal with witness, giving her clothes and money. When this stopped witness did not visit him so often. Testator during last three years of his life fell out with his family and called them shiftless and spendthrifts. In the fall of 1943, when testator was in the hospital, he did not recognize witness until some one told who she was.

This witness also testified to testator's physical condition and the suicide incident about the same as set out above.

In support of their contention that the above evidence raised an issue of mental incapacity, appellants rely principally upon the following "fact" cases: Galindo v. Garcia, Tex.Sup., 199 S.W.2d 499; Chambers v. Winn, 137 Tex. 444, 154 S.W.2d 454; White v. White, 141 Tex. 328, 172 S.W.2d 295; Mills v. Kellahin, Tex.Civ.App., 91 S.W.2d 1097 (Writ Dis.); Trezevant v. Rains, Tex.Sup., 19 S.W. 567; and Reiche v. Williams, Tex.Civ.App., 183 S.W.2d 587, affirmed 143 Tex. 365, 185 S.W.2d 420.

In Trezevant v. Rains verdict of the jury upholding a will was attacked as being without supporting evidence. Testatrix died from consumption within eleven days after executing the will. Attending physicians and subscribing witnesses testified that testatrix was physically weak and prostrate but that her mind was clear and rational, and that she was mentally sound. The verdict of the jury was held to be amply supported by the evidence.

In Mills v. Kellahin the jury found that testator lacked mental capacity. This finding was attacked as being against the undisputed evidence. Testator was 90 years of age and was suffering from various ailments, including chronic nephritis and arteriosclerosis. Several doctors testified that testator was suffering from senile dementia and was of unsound mind. The jury finding was not disturbed.

In White v. White a deed was attacked on the ground that the grantor lacked mental capacity. The trial court instructed a verdict for defendants. This was held erroneous. The evidence there showed that grantor was 75 years of age, suffered general heart...