Besteiro v. Besteiro, 8689.

• Decision Date: 16 December 1931
• Docket Number: No. 8689.,8689.
• Citation: 45 S.W.2d 379
• Parties: BESTEIRO et al. v. BESTEIRO et al.
• Court: Texas Court of Appeals

45 S.W.2d 379

BESTEIRO et al. v. BESTEIRO et al.

No. 8689.

Court of Civil Appeals of Texas. San Antonio.

December 16, 1931.

Rehearing Denied January 20, 1932.

Appeal from District Court, Cameron County; A. M. Kent, Judge.

Suit by Martin Besteiro and others against Maria Inez Besteiro and another. From a judgment for plaintiffs, defendant named appeals.

Reversed and rendered.

J. T. Canales, of Brownsville, and Cofer & Cofer, of Austin, for appellant.

H. L. Yates and Seabury, George & Taylor, all of Brownsville, for appellees.

SMITH, J.

This is the second appeal upon the merits in this cause. Besteiro v. Besteiro (Tex. Civ. App.) 18 S.W.(2d) 829. The last trial was had upon the identical pleadings upon which the former trial was had. In the former trial appellant herein recovered judgment. In the last trial her adversaries recovered. We quote this preliminary statement from the opinion of this court in the former appeal:

"In 1918, at the time of the occurrence of the transaction out of which this controversy arose, Julia Perez de Besteiro, now deceased, owned a substantial estate in Cameron county. She had four sons and three daughters, one of whom, Estolia, was married, and the other two, Rosalia and Maria Inez, unmarried. The two unmarried daughters lived with their mother, but the other children lived apart, in their own homes. On May 24, 1918, the mother executed and delivered a general warranty deed, conveying substantially all her property to one of her unmarried daughters, Maria Inez. The recited consideration for this conveyance was that the grantee would take care of, and provide for, her mother, the grantor, during the latter's life time, and give her a Christian burial at her death, and would provide for the remaining unmarried daughter, Rosalia, until she married. This deed of conveyance was filed for record on the day it was executed, and was duly recorded.

"The mother continued, as before, to reside with the two unmarried daughters, and was cared for by them, until she died in 1928, ten years after the execution and registration of said deed. And Maria Inez, the grantee, gave her mother a Christian burial, and provided for her sister Rosalia, until the latter's marriage shortly thereafter. By these means the grantee performed in full the consideration exacted of her in the deed of conveyance.

"The mother died in January, 1928, and in March thereafter all her surviving children other than the daughters Maria Inez and Rosalia brought this suit against the two daughters last named to recover the property conveyed by the deed mentioned above. The suit was brought primarily in the form of trespass to try title, and specifically to set aside and cancel the deed in question. As stated in appellants' brief:

"`The ground upon which the deed was sought to be canceled and set aside was that for many years prior to and at the time of the execution of the deed, and continuously up to the time of the death of Julia Besteiro, deceased, on the 26th day of January, 1928, Julia Perez de Besteiro was a very old woman, feeble in mind and body, suffering from diseases that rendered her weak mentally and peculiarly subject to the power of suggestion, and easily controlled and influenced by those associated with her, and that Maria Besteiro and Rosalia Besteiro, prior to her marriage, had lived constantly for many years prior to the execution of the deed and continuously up to the death of the old lady, with their mother, and by reason of undue influence exercise prior to the execution of the deed, at the time thereof, and continuously up to the death of the old woman, on the part of Maria Besteiro and Rosalia Besteiro, the mother was caused to execute and deliver the deed and to remain inactive up until the time of her death; and by reason thereof the deed was null and void.'"

Judgment was rendered for the plaintiffs in the court below upon the answers of the jury to the following special issues:

"Did Julia Perez de Besteiro, deceased, execute and deliver the deed now in evidence before you by reason of undue influence, if any, exercised by Maria Inez Besteiro and Rosalia Besteiro, or either of them? You will answer this question `Yes' or `No.'" To which the jury answered, "Yes."

"Did such undue influence continue to operate on the mind of said Julia Perez de Besteiro after the execution of said instrument, and if yes, for what length of time?" To which the jury answered, "Up to the day of her death."

The controlling questions presented in the appeal are embraced in appellant's contentions that appellees' cause of action was barred by limitation, and that there was not sufficient evidence to support the claims of undue influence. Upon the former appeal, the judgment, based on a directed verdict, was at first affirmed, but upon rehearing was reversed upon the "conclusion that the evidence upon the issue of undue influence was such as to raise an issue of fact that should have been submitted to the jury, under proper instructions." It may be said that upon the last trial the evidence was not in all phases substantially the same as that adduced upon the former trial. Nearly all the testimony in the record now before this court relates to transactions occurring subsequent to the execution of the deed in controversy. It was admitted as bearing upon the question of limitation, although not so limited in its operation upon the jury, who no doubt considered it in determining the main issue. Be that as it may, that testimony cannot be given effect in determining the controlling question of whether the claimed undue influence was effectually exerted prior to or at the very time the deed was executed.

The question of Mrs. Besteiro's mental incapacity to execute the deed in controversy is not in the case, either in the pleadings or in the evidence. The only question raised in the pleadings is that of undue influence, which "in its essential elements has no real relation to the ground of mental incapacity." Scott v. Townsend, 106 Tex. 322, 166 S. W. 1138, 1143.

Mental incapacity affords a distinct and complete ground for setting aside a testament, while undue influence affords an entirely different and equally distinct ground for that purpose. Each of the two grounds must be specifically and separately pleaded in order to be available to the party relying thereon. In this case appellees pleaded the former. But they made no effort to plead the latter, and it is therefore not in the case. It should be added that there was no testimony showing any lack of mental capacity in Mrs. Besteiro. There was slight testimony that in her later years she was at times forgetful about some details of her household affairs, and perhaps one or two incidents of forgetfulness of some of the details of her business affairs. But the whole record shows conclusively that at the time this deed was executed she was a highly intelligent woman, of determined will, who knew the condition of her affairs, and what she wanted done in the handling of them, and how to get it done. That was particularly illustrated in the very transaction here involved. When she determined in her mind to dispose of her property, she had her attorney come to her in her home, and there outlined to him her purpose to deed that property to her youngest daughter, Maria, upon condition that Maria would care for and provide for her during the remainder of her life and give her a Christian burial at her death, and provide for her other unmarried daughter, Rosalia, until the latter married. This conference with her attorney was had in the utmost privacy, in the absence of her daughters and all others. Her attorney suggested difficulties occurring to him in the way of her expressed purpose, or the proposed manner of accomplishing it, but, giving shrewd and intelligent reasons therefor, she insisted upon its being carried out according to her expressed wishes. Her attorney then left, and, after several days spent in assembling data necessary for use in the conveyance, returned with the deed prepared in accordance with her wishes. It was then read over and explained to her, she expressed satisfaction with its terms, witnesses were called in, she executed and acknowledged the instrument deliberately and with the utmost freedom, and it was duly recorded. This was on May 24, 1918. She was 65 years of age at that time. She died ten years later.

Before a testament can be set aside upon the ground of undue influence, it must appear that such influence operated upon the testator at the time of the execution of the instrument. It is not sufficient to show that such influence was exerted prior to that time. The evidence must go further and show that it bore directly upon the testator at the very time the instrument was executed, and destroyed his free agency and "so far controlled and subverted his mind and will power as to render him unable to resist it, and that, in consequence of such inability, the contract was made to reflect and express the mind and will of the person exerting the influence and not that of the" testator. Tex. Jur. Title Contracts § 36, p. 67; Barry v. Graciette (Tex. Civ. App.) 71 S. W. 309, 310. It was said by Chief Justice Fly, in the cited case, that:

"It must also be kept in mind that the undue influence must have acted directly on the mind of the testator at the time of execution of the will. Evidence of influence exerted before that time is admitted only as tending to indicate its existence at the time of execution of the will, and, no matter what the influence may have been prior to that time, if the mind of the testator was untrammeled when he made the will, it must stand."

We conclude from the record that there was not more than a scintilla of evidence, if there was any at all, to support a finding of undue influence exerted upon Mrs. Besteiro prior to or at the time she executed the deed in controversy. On the contrary, it may be said that the...