Bell v. Bell

• Citation: 237 S.W.2d 688
• Decision Date: 08 January 1951
• Docket Number: No. 6094,6094
• Parties: BELL v. BELL et al.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 688

237 S.W.2d 688

BELL v. BELL et al.

No. 6094.

Court of Civil Appeals of Texas, Amarillo.

Jan. 8, 1951.

Rehearing Denied Feb. 12, 1951.

Carter & Gallagher, Dallas, for appellant.

G. H. Kelsoe, Jr., Dallas, for appellees.

LUMPKIN, Justice.

On November 13, 1946, Lee Bell executed a will in which he bequeathed all of his property to his wife, Catherine Bell. On December 24, 1947, Lee Bell died. This case is a contest over the validity of the will of Lee Bell, deceased. It originated when the appellant, Mrs. Catherine Bell, filed in the county court of Dallas County an application to probate the will, which was contested by the appellees, Walter A. Bell, Mrs. Jimmie Bailey, joined by her husband, and Mrs. Georgia Baker, joined by her husband. Bell, Mrs. Bailey and Mrs. Baker are the children of Lee Bell and the stepchildren of the appellant. The county court admitted the will to probate, and from this judgment of the county court the appellees appealed to the district court.

Trial in the district court was to a jury. The sole question involved was whether the deceased, Lee Bell, possessed the testamentary capacity necessary for the making of a valid will. In answer to a single special issue, the jury determined that the deceased did not possess testamentary capacity at the time of the execution of the instrument dated November 13, 1946. Upon this verdict the court rendered judgment for the appellees, and to this judgment the appellant duly excepted and has perfected her appeal to the Dallas Court of Civil Appeals whence it was transferred to this court by order of the Supreme Court of Texas.

The appellant contends that the finding of the jury to the effect that the testator at the time of the execution of the will was of unsound mind is contrary to the great weight and preponderance of the credible testimony.

The appellant and Lee Bell, the testator, were married on September 3, 1935. Shortly thereafter Mr. and Mrs. Bell entered into the cafe business and later they bought a small grocery store and meat market located in Dallas County. They operated the store together and lived in a house adjacent to the store. The appellant has operated this store since her husband's death.

On November 7, 1946, the deceased became ill. He was examined by Dr. H. C. Hodges, who discovered that Bell had a large edematous, or swelling, in the right leg. Soon after he became ill, the deceased instructed C. P. Smith, the appellant's son-in-law, to have a will written bequeathing all his property to the appellant. The will was written and delivered to the appellant. On November 13, 1946, Bell executed the will containing only two provisions: first, he bequeathed all of his property to his wife; second, he appointed the appellant as independent executrix of his will and estate and directed that no bond be required of her. He directed that no action be had in the probate court with reference to his estate, other than the probating of the will and the return of the statutory inventory. The record does not state the exact age of the deceased at the time he signed the purported will. However, it does reveal that he had grown children and it may be inferred from the entire record that he was an elderly man. Bell recovered from his illness in 1946 and returned to work in the store. In the fall of 1947 he became ill again and remained in bed until December 24, 1947, the date of his death. According to Dr. Hodges, Bell's death was due to a blood clot in the coronary arteries; his death was the result of an entirely different illness from that which he had suffered in the fall of 1946.

In the case of Green v. Dickson, Tex.Civ.App., 208 S.W.2d 119, 124, the law governing the issue of mental incapacity is stated as follows:

'It is the right of every citizen of this State to dispose of his property by will as he may desire, regardless of the ties of nature or relationship.

'It is the established rule that, in determining whether an aged testator has sufficient mental capacity to make a valid will, the court should be controlled by testator's acts connected with the execution of the will, the reasonableness of its provisions, and his ability to detail the nature and extent of his property and to know the objects of his bounty.

"The test is not whether the person who has made testamentary disposition of his property was of a high order of intelligence, but the humbler test is applied. Did he know what he was doing with the property which he knew he owned when he executed his will, and did he perform the act of his own free volition, and because he desired to do so? ' Salinas v. Garcia, Tex.Civ.App., 135 S.W. 588, 590.

'A testator may be old and infirm, weakened in energy and impaired in his senses, but, if he responds to the test which is applied to human beings in the ordinary affairs of life, the disposition of his property will be respected. 'It is not for juries nor courts to say how property should be passed by will. They can do no more than see that the testator's mentality meets the law's tests.' Whitney v. Murrie, Tex.Civ.App., 264 S.W. 270, 274.

'It was held in the case of Vaughan v. Malone, Tex.Civ.App., 211 S.W. 292, writ dismissed, that, while contestants' witnesses testified that testatrix had a weak mind, was eccentric, and had some childlike ways, these conditions were not sufficient to justify annulling her will; that it was sufficient if she knew that the transaction in which she was engaged was the making of a will that conveyed her property at her death, and that she remembered the objects of her bounty, and acted without improper influences. Citing the cases of Brown v. Mitchell, 75 Tex. 9, 12 S.W. 606; Salinas v. Garcia, Tex.Civ.App., 135 S.W. 588; Milner v. Sims, Tex.Civ.App., 171 S.W. 784.

'In the case of Milner v. Sims, Tex.Civ.App., 171 S.W. 784, it was held that the fact that testatrix was old and feeble, that her memory had become faulty and her mental faculties somewhat impaired, was not sufficient to warrant a court in setting aside her deed or will; that the right of a grantor to dispose of her property according to her own wishes was just as sacred, and should be guarded with as much care, as any rights due to the living.'

In the case of Stell v. Salters, Tex.Civ.App., 83 S.W.2d 742, 743, the court said:

'The tendency of juries to set aside wills which exclude blood relatives from participation in the distribution of the estate of the testator is well known to the bench and bar. Huffnagle v. Pauley (Mo. Sup.) 219 S.W. 373; McCannon v. McCannon, Tex.Civ.App., 2 S.W.2d 942.

'Juries, in such cases, are disposed to think they are better qualified than the testator to make a proper disposition of the estate and make findings accordingly.

'In this case the will operated to divert the bulk of Finley's estate from Finley's blood relatives to those of Mrs. Finley. A man or woman in this state has the absolute right to dispose of their property by will as they see fit. Stolle v. Kanetzky, Tex.Civ.App., 220 S.W. 557. Such right is not to be defeated by adverse findings of juries upon the issue of testamentary capacity based upon evidence which does not fairly support such findings. * * *

'Numerous nonexpert witnesses for contestee testified the testator was of sound mind. A number of witnesses testified in behalf of contestants to trivial matters. No delusions or any peculiarities were shown from which mental unsoundness could be reasonably inferred. Contestants' witnesses, Frank Farmer, Ed. Buford and wife, testified that in their opinion Finley was of unsound mind, but the facts upon which they based such conclusions were, in our opinion, wholly insufficient to support the same. There was also evidence that Finley suffered from a physical ailment, but there is nothing to suggest it affected his mind.

'The entire evidence in this case has been examined carefully and the conclusion reached that the adverse finding upon the issue of testamentary capacity is so contrary to the great weight of the evidence as to be clearly wrong, manifestly unjust, and should be set aside.'

The proponent of a will has the burden of making out a prima facie case of the sanity of a testator at the time he executed the will. There is no presumption, as there is in the case of the makers of deeds and contracts, that the maker of a will was sane at the time he executed it. However, the state of mind of the testator as to sanity at times other than when he executed the will has no probative force except as it may tend to show the testator's state of mind at the time he executed the will. Navarro v. Garcia, Tex.Civ.App., 172 S.W. 723, 724; Kutchinsky v. Zillion, Tex.Civ.App., 183 S.W.2d 237, 239, writ refused.

A search of the statement of facts reveals that no witnesses testified that Lee Bell was of unsound mind on the morning of November 13, 1946, at the time he executed his will. Several witnesses for the appellees saw the testator at intervals during his illness in 1946, and at such times he appeared to be asleep, unconscious or in a stupor. As a rule they had no conversations with him. These visits occurred in the evening. It is true that J. B. Walker, the deceased's brother, assisted in caring for him. According to his testimony, he was in the Bell home from 3:30 in the afternoon until 9 the following morning every day from November 7 to November 25. He stated that whenever he went into the sick room, Bell did not recognize him, and during this time had no conversations with anyone. He stated further that Bell had his eyes closed and appeared to be resting and relaxed and that from November 7 to about November 17 he didn't know what he was doing.

The evidence shows that other than the testator, three persons were present at the time the will was executed: the appellant, J. E. Gray and Mrs. C. T. Owens. The witness Gray testified that he had lived near Mr. and Mrs. Bell for about ten years; that he had traded with...