Berryhill v. Berryhill
| Decision Date | 15 February 1917 |
| Docket Number | (No. 65.) |
| Citation | 193 S.W. 218 |
| Parties | BERRYHILL et al. v. BERRYHILL. |
| Court | Texas Court of Appeals |
Appeal from District Court, Liberty County.
Action to contest will of Miles F. Berryhill by C. W. Berryhill and others against Ida Berryhill, proponent. Judgment for proponent, and contestants appeal. Affirmed.
Stevens & Stevens, of Houston, for appellants. E. B. Pickett, Jr., of Liberty, for appellee.
This is an action to contest the will of Miles F. Berryhill, deceased, the proceedings having been properly instituted in the county court of Liberty county, Tex., and taken from thence on appeal to the district court of said county. C. W. Berryhill and the other children of said Miles F. Berryhill, deceased, contested his will upon the following grounds: (1) Because the will which was offered for probate by his widow, Ida Berryhill, was not the will of the said Miles F. Berryhill, deceased; (2) because at the time of its purported execution the same was not witnessed by two witnesses as required by law; (3) because the alleged testator could not read and write, and the said will was not read to him; (4) because the said Miles F. Berryhill, for more than a year prior to his death, was not of sound mind and did not have testamentary capacity nor mental capacity sufficient to republish any will which might have been defectively executed.
The will was probated in the county court, as above stated, and from the order probating the same the contestants appealed to the district court, where a trial was had before a jury. The court, however, took the case away from the jury, and directed them to return a verdict in favor of the proponent of the will, which was accordingly done, and a judgment was entered in the district court admitting the will to probate. The contestants appealed from this action of the district court.
Miles Berryhill, the testator, died on January 16, 1914, and his will, which is being contested, is witnessed by J. A. Jett and J. L. Ellis. It is not dated, but Mrs. Ida Berryhill, his widow, testified that he gave her this will to put away about four or five months after their marriage, in October, 1901. The contestants C. W. Berryhill, Will Berryhill, Ellen Partlow, and Elizabeth Key are children of the testator by his first marriage, and the contestants Viola, Sanders, Miles, and Will Phillips are his grandchildren, being the children of a deceased daughter by his first marriage. Testator's first wife died about 1891 or 1892, and the proponent, Mrs. Ida Berryhill, was his second wife, and in the will she is named as sole devisee and appointed executrix without bond, and the will closes with this statement:
"I desire to state that my children, to wit, William Berryhill, Ellen Partlow, Jerusha Phillips, Charlie Berryhill, and Bettie Key, have received their full share of my estate coming to them in my lifetime; hence they are not made parties to my will of my remaining property."
At the time of his death testator was 78 years of age. He could not read or write, and the will is signed by his mark.
Appellants' first assignment assails the action of the court for the following reasons:
(a) Because the court erred in instructing the jury to return a verdict for Ida Berryhill for the alleged will.
(b) The evidence on the part of the proponent having shown that one of the witnesses, to wit, J. L. Ellis, whose name is subscribed to the instrument, offered for probate would have known and would have remembered if he had signed the will in the presence of the alleged testator, M. Berryhill, deceased, and the evidence having further shown that the attorney who wrote the will was a man addicted to the use of morphine and was a careless man, and the evidence having further shown that shortly before the death of M. Berryhill the said Berryhill exhibited the paper, which was offered for probate, to C. H. Cain, with the statement that Judge Swilley had informed him it was no good, and there being no evidence to show that J. A. Jett and J. L. Ellis signed the instrument, which was offered for probate in the presence of the alleged testator, hence the court erred in instructing the jury to return a verdict in favor of Ida Berryhill, proponent.
(c) In passing upon a motion for a directed verdict, the court cannot weigh the evidence, but is bound to concede to be true all evidence which supports the view of the party against whom the motion is made, and must give such party the benefit of all legitimate inferences which are to be drawn therefrom in his favor; hence the court in directing a verdict in favor of Ida Berryhill, the proponent of the alleged will, took away from the jury the right to pass upon the fact as to whether or not J. L. Ellis and the other purported witness, J. A. Jett, signed the alleged will in the presence of the alleged testator, there being evidence to support the contention of the contestants that the witness J. L. Ellis at least did not sign the said instrument in the presence of M. Berryhill, the deceased, the said Ellis having testified that, if the said M. Berryhill had been present when he signed his name as a witness to the instrument, he believed he would have remembered the fact of his presence.
Appellants present the following proposition under this assignment: A verdict should not be directed unless there is no room for ordinary minds to differ as to the conclusion to be drawn therefrom.
We believe the proposition announces a correct legal principle, but we are unable to see from the testimony any evidence that would have a tendency to leave room for ordinary minds to differ as to the conclusion to be drawn from the testimony in this case. It is entirely unnecessary for us to rehash the testimony. The statutes of this state provide that, if none of the witnesses to the will are living, it may be probated on proof by two witnesses of the handwriting of the subscribing witnesses thereto, and also the testator, if he was able to write, and the testimony shows that J. A. Jett was deceased, and that J. L. Ellis was without recollection of having signed the will as a witness, and did not recall anything of the transaction, but he (Ellis) admitted that his signature to the will was genuine, and also his handwriting, and the signature of J. A. Jett, the other witness, was proved by two other witnesses, and Ellis also identified Jett's signature as genuine. The fact that a man did not remember distinctly—in fact, did not remember anything —about the particular transaction does not leave any room for conjecture, and we are of opinion that, as provided by the statute, the testimony shows that the will was executed as required by law.
The exact language used by Ellis was as follows, after testifying that he knew Mr. Miles Berryhill intimately:
The evidence further shows that the deceased, Miles Berryhill, within a very short time after his second marriage, gave the instrument that was probated as his will to his wife, Mrs. Ida Berryhill, and that she kept it, and had it in her possession until a short while before the death of Miles Berryhill, and it is shown that just a short while before his death Miles Berryhill got that same will from the custody of his wife, and presented it to Mr. Cain, an attorney, and stated to Cain that he wanted to leave everything he possessed at his death to his wife, and had a conversation with Cain, in which conversation Cain told him that, if that was his desire, the will had carried out his intention in that respect, and that the will was all right if that was what he wanted to do. The will was as follows:
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Allen v. Massey
...with reasonable certainty that the will was witnessed as required by the statute suffices to satisfy the law. The case of Berryhill v. Berryhill, 193 S. W. 218, is a case particularly in point, and to it we refer as authority sustaining our view. The decisions of the courts of other states ......