Bettis v. Bettis

• Decision Date: 15 January 1975
• Docket Number: No. 12190,12190
• Citation: 518 S.W.2d 396
• Parties: Ann Joy BETTIS, Appellant, v. James J. BETTIS, Independent Executor, Appellee.
• Court: Texas Court of Appeals

Page 396

518 S.W.2d 396

Ann Joy BETTIS, Appellant, v. James J. BETTIS, Independent Executor, Appellee.

No. 12190.

Court of Civil Appeals of Texas,

Austin.

Jan. 15, 1975.

Rehearing Denied Feb. 5, 1975.

Douglass D. Hearne, Stayton, Maloney, Hearne, Babb & Cowden, Austin, for appellant.

John F. Morehead, Gibbins & Spivey, Austin, for appellee.

SHANNON, Justice.

This will contest was tried before a jury on appeal to the district court of Travis County. In response to two special issues, the jury answered that the testator had testamentary capacity and failed to find that the testator was acting under undue influence. Judgment was entered admitting the will to probate. We will affirm that judgment.

The will in question was signed by the testator, James Wallace Bettis, Jr., on January 2, 1973. He died on March 8, 1973, at the age of fifty-six. At the time of his death he was married to his second wife, Ann Joy Bettis. No children had been born to him and his second wife. By his first wife the testator had two sons, James Jay Bettis and Douglas Dewey Bettis, both over the age of twenty-one at the date of their father's death. At the time of the execution of the will in question and at the time of death of the testator, the second wife had filed a suit for divorce against him.

In the instrument admitted for probate the testator devised practically all of his estate to his two sons, and named the eldest son, James Jay Bettis, independent executor. Appellant is the second wife and appellee is the independent executor of the estate.

Appellant attacks the judgment of the district court by five points of error. The first two points of error are that the jury's answer that the testator had testamentary capacity was supported by no evidence, and, alternatively, by insufficient evidence. Her third point claims misconduct on the part of the jury in discussing the disposition of the testator's estate in light of her homestead rights. Her fourth and fifth points are that one of the jurors was disqualified as a matter of law, and that the juror was guilty of material misconduct during the voir dire examination and jury deliberations.

To have testamentary capacity at the time a will is executed, the testator must have been capable of understanding the business he is about, the nature and extent of his property, the persons to whom he meant to devise and bequeath it, the persons dependent upon his bounty and the mode of distribution among them. He must have had memory sufficient to collect in his 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. Prather v. McClelland, 76 Tex. 574, 13 S.W. 543 (1890).

Appellant's first and second points of error will be overruled as there was evidence to support the jury's answer that the testator had testamentary capacity at the time of the execution of the will, and we are of the opinion that the jury's answer was not contrary to the great weight and preponderance of the evidence.

Appellant's attack upon the testator's testamentary capacity centered upon his admitted alcoholism. Appellant testified that after their marriage in August of 1968, she noticed that his drinking increased. By 1971, his interest in daily affairs had lessened and the record shows that he had entered into the disordered world of drink, consuming a half gallon of hard liquor every two days. From the time that he arose from bed at nine or ten o'clock in the morning and poured himself an eyeopener, he hastened to be drunk--that becoming the business of the day. During this period appellant testified that her husband's disposition was variable depending upon the time of day and the amount of alcohol consumed. Appellant also noticed that he had difficulty in remembering recent events such as whether or not the mail had come that morning.

By January of 1972, appellant testified that she was forced to resort to the filing of a divorce suit in order to impress upon her husband his need for hospitalization. He was finally admitted to Shoal Creek Hospital, and the divorce suit was dismissed shortly thereafter. At the hospital he was as one witness described, 'boiled out,' and upon his release he returned home with appellant and refrained from drinking until July 4, 1972. At that time he resumed his old pattern of drinking, and his consumption was such that one witness claimed that he '. . . never did really sober up even in his sleep . . .'

In November of 1972, appellant filed the second suit for divorce against her husband. She testified that she filed the second suit for the same reasons as she had the first and that she had discussed the filing with her husband and that he had even promised to go to the hospital if she filed the second divorce suit. After the suit was filed Bettis took an apartment in Port Aransas, and did not return to live with appellant though he visited her on occasion and called regularly by telephone. He signed the will in question on January 2, 1973. The evidence showed that Bettis continued drinking heavily until his final hospitalization and death in Houston on March 8, 1973.

Appellant supported her attack upon her husband's testamentary capacity by the testimony of three physicians. One of the physicians was Dr. John Stafford, a psychiatrist, who treated Bettis during his stay at Shoal Creek Hospital, and who had also examined Bettis' medical records from his final hospitalization. Dr. Richard J. Alexander, a local psychiatrist, not a treating doctor, testified relative to Bettis' testimentary capacity from an examination of the medical records. Both psychiatrists testified that in their opinion it was doubtful that Bettis had testamentary capacity on January 2, 1973, the day of the execution of the will. Dr. Stafford testified that even though Bettis would have been able to understand the will as he began reading it, that he would probably not have remembered the beginning by the time he reached the end of the document. Dr. Touglas Terry, a specialist in internal medicine, treated Bettis in Shoal Creek Hospital. He was also of the opinion that Bettis probably lacked testamentary capacity on the morning when he executed the will.

Appellee offered evidence of Bettis' testamentary capacity by several witnesses. Among those witnesses was James H. Garst an attorney and the notary who took the acknowledgment on the self-proving affidavit of the will. Garst had done legal work for Bettis as well as for appellee. Another of appellee's witnesses was Bob Germany, a subscribing witness to the will. Germany had known Bettis for many years as one of his employees for Robertson Tank Line. Appellee also offered the testimony of the attorney who drew the will in question, of neighbors of Bettis' in Port Aransas, of his banker in Port Aransas, of a Houston attorney then representing Bettis on a collection matter, and of a land man who had called on Bettis about two weeks before his death.

Appellee also tendered the testimony of Paul Holt, a member of the Travis County Bar who had represented Bettis in the two divorce suits and in a 'Driving-While-Intoxicated' prosecution in the county court-at-law of Travis County. The appellee also called the Honorable Charles D. Mathews, Judge of the 200th District Court in and for Travis County. Judge Mathews had represented Robertson Tank Line for many years and in that representation had known Bettis well . His friendship with Bettis continued after the termination of the attorney-client relationship and Judge Mathews saw him on a fairly regular basis. His last visit with Bettis was in January of 1973. Judge Mathews testified, as did the other witnesses tendered by appellee, that in his opinion, Bettis was possessed of those requirements which constitute testamentary capacity.

In addition, appellee proffered the testimony of Dr. Jimmy Russell Clemons relative to Bettis' testamentary capacity. Dr. Clemons had not treated Bettis but he had examined his medical records. Based upon hypothetical questions, Dr. Clemons answered that he was of the opinion that at the time of the execution of the will, Bettis had sufficient mental capacity.

Appellant argues under her no evidence point that in view of the testator's chronic alcoholism, his testamentary capacity was to be properly determined solely by expert medical testimony. In support of her position appellant states that the residual effect of toxic by-products of alcohol, the interrelationship of alcoholically induced liver damage and brain swelling, the lingering effect of 'wet brain,' and the ability of a chronic alcoholic to dissimulate and appear sober are all matters beyond a layman's ken.

In support of her argument, appellant lists a number of cases for the proposition that certain specialized medical matters are...