Bell v. Blackwell

• Court: Texas Supreme Court
• Writing for the Court: Speer
• Citation: Bell v. Blackwell, 283 S.W. 765 (Tex. 1926)
• Decision Date: 12 May 1926
• Docket Number: (No. 622-4443.)
• Parties: BELL et al. v. BLACKWELL.<SMALL><SUP>*</SUP></SMALL>

Page 765

283 S.W. 765

BELL et al. v. BLACKWELL.^*

(No. 622-4443.)

Commission of Appeals of Texas, Section B.

May 12, 1926.

Error to Court of Civil Appeals of First Supreme Judicial District.

Application of W. A. Blackwell and others for probate of the will of Sarah Jane Bell, deceased, contested by James R. Bell and another. Judgment for proponent was affirmed (273 S. W. 866), and contestants bring error. Reversed and remanded.

W. T. Bagby, of Hallettsville, R. J. Waldeck, of Cuero, Fly & Ragsdale, of Victoria,

Jas. R. Dougherty, of Beeville, and O. Ellis, Jr., of Luling, for plaintiffs in error.

Jno. H. Bailey, H. W. Wallace, and Crain & Hartman, all of Cuero, for defendant in error.

SPEER, J.

This is a probate case originating upon the application of W. A. Blackwell and others to probate the will of Miss Sarah Jane Bell, deceased, which application was contested by J. R. Bell and others. The will was admitted to probate in the county court, but was carried by appeal to the district court, where it was again admitted to probate. Upon further appeal by the contestants, the Court of Civil Appeals for the First district affirmed the judgment of the district court (273 S. W. 866), and the cause is now before us upon a single question of practice.

The contest was based upon the grounds of mental incapacity of the testatrix, and the court submitted the following instructions:

"The burden of proof is upon the proponent, W. A. Blackwell, Sr., to show by a preponderance of the evidence that Miss Sarah Jane Bell was of sound mind at the time of the execution of the instrument offered for probate; that is, that she (Miss Sarah Jane Bell) had the capacity to know and understand what she was doing, and the effect of her act at the time she executed said instrument. If she had that capacity, her mind was sound; if she did not have it, her mind was unsound."

The contestants excepted to this charge and requested the following:

"You are instructed that by the term `sound mind,' as used in the special issue submitted to you, is meant testatrix must have been capable of understanding the nature of the business she was engaged in, the nature and extent of her property, the persons to whom she might devise and bequeath it, and the mode of distribution among them; that she must have had memory sufficient to collect in her mind the elements of the business to be transacted, and to hold them long enough to perceive at least their obvious relations to each other, and to be able to form a reasonable judgment as to them. And in answer to this issue you will be guided by this definition."

The Court of Civil Appeals overruled the objection to the instruction as given, and no question is here made as to the correctness of that ruling. We merely set out this part of the proceedings as explanatory of the real question raised.

As stated by the Court of Civil Appeals:

"In the course of the trial of the case, and in the argument to the jury on behalf of contestants, it was contended by counsel that before the jury could find that the testatrix was of sound mind, they must find that she was capable of understanding the nature of the business she was engaged in, the nature and extent of her property, the persons she might devise and bequeath it, and the mode of distribution among them; that she must have memory sufficient to collect in her mind the elements of the business to be transacted, and to hold them long enough to perceive at least their obvious relation to each other, and be able to form a reasonable judgment as to them, and that such was the legal effect of the court's charge.

"That Mr. A. C. Hartman, Esq., of counsel for proponent of the will, in his closing address, made use of the following argument to the jury: `It is not necessary for the testatrix, at the time of the execution of the will, to comprehend the nature and extent of her estate, or the objects of her bounty, and the business that she was about, but all that was necessary was that she possess the capacity to know and understand what she is doing, and the effect of her act at the time she executed the instrument.' To such argument so made, contestants then and there objected, because the argument was misleading the jury as to the law of the case, and because it was not a correct statement of the necessary elements constituting the capacity required of one to execute a valid will. The court overruled the objection so made, and permitted counsel to continue such argument, which he continued as follows: `It is not true, as argued by counsel for contestants, that she must have the mental capacity, at the time of the execution of the will, to comprehend the nature and extent of her estate, the objects of her bounty, and the business that she was about, and that if such had been the law Judge Green (the trial judge) would have so instructed the jury in his charge.'

"The contestants then further objected to said argument, because it expressly emphasized the error pointed out by contestants in their objection made originally to the court's charge, which objection and exception had been overruled by the court before the argument had begun in the case; but the trial court overruled all of said objections to said argument and permitted counsel to continue such argument of the case to the jury, to which action of the court contestants excepted."

The Court of Civil Appeals thought the argument was improperly made as an incorrect statement of the law in the presence and hearing of the court and jury, which the court should have corrected, and indicated its view that it was unnecessary for the court, in defining the term "sound mind," to go into such minute details as is embodied in the special requested charge, yet that under the charge it was necessary, to show mental soundness, that testatrix should have had the mental capacity at the time of the execution of the will to comprehend the nature and extent of her estate, the objects of her bounty, and the business that she was about, in other words, concurring in the contention of contestants upon that point. But that court held the error harmless, saying:

"Had the issue as to the mental capacity of testatrix been sharply contested, so that the argument complained of might have affected or changed the verdict of the jury, we would not hesitate to reverse the judgment; but we find no such condition. * * * The evidence offered for the purpose of showing that Miss Bell was not of sound mind at the time of the execution of the will was so weak as to be of but little, if any, probative force. The evidence, as we view it, is so overwhelmingly in favor of the sanity of Miss Bell at the time of the execution of the will as to render a finding to the contrary unsupportable by the evidence. A finding to the contrary would have been so against the overwhelming weight and preponderance of the evidence as to be clearly wrong, and in such case such finding could not be upheld by the court."

The sole assignment of error before us complains of this argument and the action of the court upon plaintiffs in error's objections thereto.

We agree with the Court of Civil Appeals that the argument was an improper one, and should work a reversal of the case, unless upon the whole record it can be excused as harmless. If the reasoning of the Court of Civil Appeals with respect to the sufficiency of the court's definition of sound mind is correct, a matter not before us (see Morris v. Morris [Tex. Com. App.] 279 S. W. 806), it is so because the definition is broad enough to include and does cover the precise insistence of contestants included in their objections to the argument, and the court's overruling these objections necessarily amounted to an interpretation of the instruction to the jury contrary to that given by the Court of Civil Appeals, and contrary to the law governing such a situation. The case therefore has not been tried upon a correct theory of the law, but in fact upon an improper conception thereof. But it was decided the error under the facts of this case was harmless. Let us see as to this doctrine of harmless error.

In M., K. & T. Ry. Co. v. Hannig, 91 Tex. 347, 43 S. W. 508, where improper evidence was admitted, the Supreme Court, through Chief Justice Gaines, said:

"The true rule is that in such a case, in order to hold that the error does not require a reversal of the judgment, it ought clearly to appear that no injury could have resulted from the admission of the evidence. Since it does not so appear with reference to the testimony in question, the judgment must be set aside and a new trial awarded."

The Chief Justice cites a prior Supreme Court decision for the holding.

In Houston, etc., Co. v. Gray, 105 Tex. 42, 143 S. W. 606, where the matter of attorney's fees in a personal injury case was improperly discussed in the jury room, Chief Justice Brown said:

"If the evidence taken by the trial judge left it reasonably doubtful as to the effect the statement had upon the amount of the verdict of the jury, we would feel inclined to exercise our authority and set it aside."

This rule of practice has been expressly approved and followed in later cases. Hines v. Parry (Tex. Com. App.) 238 S. W. 886; Payne v. Harris (Tex. Com. App.) 241 S. W. 1008; Southern Traction Co. v. Wilson (Tex. Com. App.) 254 S. W. 1104; Gulf, etc., Co. v. Harvey (Tex. Com. App.) 276 S. W. 895; Moore v. Ivey (Tex. Com. App.) 277 S. W. 106; San Antonio, etc., Co. v. Alexander (Tex. Com. App.) 280 S. W. 753.

So that, there being error in the proceedings through which plaintiffs in error lost their case, the cause should be remanded, unless it affirmatively appears from the record that such error was harmless; or, differently stated, a reversal should follow if there is any reasonable doubt of its harmful effect. There is no reason to hold that this rule should apply to errors of the court in admitting or rejecting evidence and to errors of ...