Boultinghouse's Estate, In re

• Decision Date: 07 April 1954
• Docket Number: No. 5000,5000
• Citation: 267 S.W.2d 614
• Parties: In re BOULTINGHOUSE'S ESTATE.
• Court: Texas Court of Appeals

Page 614

267 S.W.2d 614

In re BOULTINGHOUSE'S ESTATE.

No. 5000.

Court of Civil Appeals of Texas, El Paso.

April 7, 1954.

Rehearing Denied April 28, 1954.

Kemp, Smith, Brown, Goggin & White, El Paso, for proponent.

Guinn & Guinn, El Paso, for contestant.

McGILL, Justice.

This is a will contest case. In the trial court appellant was the proponent of the alleged will of Susan E. Boultinghouse, deceased, dated October 22, 1951, and appellee was the contestant. Mrs. Boultinghouse died on January 16, 1952. Application for probate of the alleged will was filed on January 17, 1952 in the County Court of El Paso County. Contestant filed a contest of this application on the ground that the deceased did not have testamentary capacity. Trial before the county judge resulted in a judgment admitting the instrument to probate. An appeal was taken by the contestant to the 65th Judicial District Court of El Paso County, where trial was to a jury. In answer to the only issue submitted the jury failed to find that at the time Susan E. Boultinghouse signed the instrument offered for probate, dated October 22, 1951, she had testamentary capacity. In conformity with this verdict the court denied probate of the instrument and proponent perfected her appeal to this court.

Appellant's first point is that Susan E. Boultinghouse as a matter of law had testamentary capacity at the time of executing the instrument offered for probate as her will dated October 22, 1951, and her second point is that the finding of the jury that she did not have such testamentary capacity was contrary to the weight of the great preponderance of the evidence.

The instrument was prepared by Mr. James F. Hulse, an attorney. He testified that the testatrix came to his office and gave him the information from which he prepared the will; that so far as he recalled she had no notes or memoranda, but gave him the description of the property mentioned in the will without reference to any memorandum so far as he recalled, and that he had obtained the information from no other source; that he prepared the will in accordance with her instructions by dictating it to his secretary, Mrs. Horton, and instructed her when she had it typed to give it to his partner, Mr. Schuyler Marshall, to check for errors, and then to phone the testatrix and have her come to the office to execute the will. Mrs. Horton testified that she typed the will as dictated to her by Mr. Hulse, submitted it to Mr. Marshall and called Mrs. Boultinghouse, as instructed by Mr. Hulse, and that Mrs. Boultinghouse came to the office and she took her in to Mr. Marshall's office, where she read over the will and signed it in her presence and the presence of Mr. Marshall. Mr. Marshall testified to the same effect. Both Mr. Hulse and Mr. Marshall, and Mrs. Horton, further testified that they noticed nothing unusual or abnormal about the testatrix, that she seemed to be capable of knowing and did know exactly what she wanted in her will and discussed the matter in a businesslike manner. We here reproduce the instrument in question:

'The State of Texas

County of El Paso

'Know All Men By These Presents: That I, Susan E. Boultinghouse, the widow of Charles M. Boultinghouse, of El Paso County, Texas, being in good health and of sound and disposing mind and memory, do make and publish this, my last will and testament, hereby revoking all wills by me at any time heretofore made.

'I.

'I direct that all my just debts including those incident to my last illness and interment shall be paid out of my estate as soon after my death as my hereinafter appointed executrix shall deem convenient and proper.

'II.

'I give, devisee and bequeath unto my friend Dorothy Ann Bailey, of El Paso, Texas, the following described property, towit:

'Lots twenty-six (26) and twentyseven (27) in Block One Hundred Six (106), of the Highland Park Addition to the City of El Paso, El Paso County, Texas, which property is also known as No. 2713 Altura Boulevard, El Paso, Texas, together with all the furnishings and personal property therein at the time of my death.

'III.

'I give and bequeath unto my beloved friend, Margaret Holloway, of El Paso, Texas, my diamond Ring.

'VI.

'I give, devise and bequeath all of the rest and residue of my estate, real, personal, and mixed to my cousin Margaret Fickling, of Lynwood, California. This residue includes, but is not limited to (1) my new home described as Lot One Hundred Ninety-nine (199) in Block Twenty-three (23) of Second Section of Loretto Place Addition to the City of El Paso, El Paso County, Texas, which property is also known as No. 616 Sierra Road, El Paso, Texas; (2) any bonds I may own at the time of my death; and (3) the balance due on a promissory note payable to me, signed by Cecil Brunk. I particularly direct my executrix to collect the balance due on this note, and to pay over the proceeds thereof to said Margaret Rickling as I desire said proceeds to go to her.

'V.

'I appoint Dorothy Ann Bailey to be the sole and independent executrix of this my last will and testament and of my estate, and direct that no bond or other security be required of her in such capacity, and that no proceedings with reference to this my last will and testament or my estate be had in any court other than to probate this my last will and testament and to file an inventory, appraisement and list of claims as the law directs.

'VI.

'I request my executrix Dorothy Ann Bailey to request J. F. Hulse to render all legal services required in connection with the probating of this will and the administration of my estate.

'In Testimony Whereof, I have executed this instrument, at El Paso, Texas, on this the 22 day of October, 1951, in the presence of Schuyler B. Marshall and Gladys Horton who, at my request and in my presence, and in the presence of each other have signed their names hereto as attesting witnesses.

'/s/ Susan E. Boultinghouse

'Testatrix

'The foregoing instrument consisting of two pages, including this page, was signed by the Testatrix Susan E. Boultinghouse, and she declared the same to be her last will and testament, and we, at her request and in her presence and in the presence of each other, sign the same as attesting witnesses this 22nd day of October, 1951.

'/s/ Schuyler B. Marshall

'/s/ Gladys Horton.'

We now summarize the evidence on which appellee relies to sustain the jury verdict as reflected by her brief: Susan Boultinghouse had suffered from a vicious disease since 1945 and probably for a longer period. This disease was arterio sclerosis; that the effects of this disease are not easily seen and only noted after much damage has been done to the brain; that one does not recover from it, but it destroys brain cells which are never replaced, and becomes progressively worse; that in addition to this cerebral arterio sclerosis, deceased was suffering from high blood pressure, hypertension, and was diabetic, which aggravated her mental deterioration; that the deceased had been a fine bookkeeper before the disease destroyed her faculties and rendered her unemployed and unemployable; she had been an agile woman and a good conversationalist, an excellent cook and an adept bridge player; had earned and saved and cared for her property; had painted pictures and done works of ceramics; had been a noted penman and had kept books for the Acme Laundry where her work was regarded as 'pretty as a picture'; she had handled her legal affairs in good order; she was an expert driver and cared for her car; she travelled about the country and visited back and forth with her only kin, the appellee, who lived in California; she had fine taste and manners, cared for her personal grooming and health; had been a capable business woman, self-sufficient and independent; that because of the disease she began to change more and more. Her own physician diagnosed her trouble in 1945 and her friends noticed her change until the disease took her in a 'severe vascular accident'; that she was in almost a pathetic state for months before the will was executed; she could no longer keep books or even keep her own personal transactions straight; she could not write a check properly or make out a receipt or fill in blanks of a promissory note; could not address a package for mailing; she was constantly falling, with strokes which caused her to have a momentary loss of consciousness; she could no longer cook; she was no longer the life of the party and she could not even carry on a simple conversation with longtime friends, but would lapse into a silence in the middle of talk, stare into space for several minutes until brought out of her spell. She would commence one subject of conversation while right in the middle of another; she could no longer paint or work with ceramics; her writing looked like chicken tracks; she abused her automobile and drove in a wild and reckless manner; she would leave it at night in the driveway with the doors ajar, the lights turned on and the key in the ignition switch; she fell into bad manners, described as those of a little, untrained child; she thought it amusing to spit food on her friends; she sat with her dress up high and not covering her limbs; she refused to pull window shades; she made revolting noises and washed her dentures under the kitchen faucet in full view of the dining table; she would eat directly from the serving plates at the table; she could not dress herself so as to get on matching shoes or earrings; she could not add or subtract; she made lavish gifts to those who were better off than she and exhausted her cash assets to the amount of $24,000 in twenty-seven months; although she was just sixty-two years of age; that she had spells of hysteria and crying within two days of the execution of the will in question; that although she had been warned by her physician against doing so she continued to eat ice cream, and that on one occasion she was covered from head to foot with...