Boyer v. Pool

• Decision Date: 06 April 1955
• Docket Number: No. A-4762,A-4762
• Citation: 280 S.W.2d 564,154 Tex. 586
• Court: Texas Supreme Court
• Parties: Bertie M. BOYER et al., Petitioners, v. J. C. POOL et al., Respondents.

Page 564

280 S.W.2d 564

154 Tex. 586

Bertie M. BOYER et al., Petitioners, v. J. C. POOL et al., Respondents.

No. A-4762.

Supreme Court of Texas.

April 6, 1955.

Rehearing Denied July 27, 1955.

Bryan, Maxwell, Bryan & Wilson (Stansell Bryan), Waco, P. M. Rice, Hamilton, L. Brann, Lubbock, for petitioners.

Abney, Hammett & Lynch (J. V. Hammett), Lampasas, Truman E. Roberts, Hico, H. W. Allen, Hamilton, for respondents.

WILSON, Justice.

This is a contest to the probating of a will upon grounds of undue influence.

The contestants secured a jury finding that the execution of the will had resulted from the exercise of undue influence. The trial court disregarded this verdict and entered judgment sustaining the probate, because, in its opinion, there was no evidence of undue influence. This judgment has been reversed and rendered by the Court of Civil Appeals. 268 S.W.2d 223.

The only question presented is whether there is any evidence of undue influence. The test of undue influence is whether such control was exercised over the mind of the testator as to overcome his free agency and free will and to substitute the will of another so as to cause the testator to do what he would not otherwise have done but for such control. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138; Curry v. Curry, Tex., 270 S.W.2d 208.

The Court of Civil Appeals gives a fair summary of the testimony. This establishes in substance that the testator was eighty nine years old when he executed the will and subsequently died at the age of ninety three years; that there was friction, jealousy, and bad feeling between his daughters and the widow of a deceased son; that his daughters gave considerable thought and attention to the question of whether his son (deceased father of contestants) owed a debt to the testator which should be taken into consideration by the testator in drawing his will; that they discussed this question among themselves and with him at various times; and that there was general rivalry and jealousy between the daughters and their sister-in-law, the wife of the deceased son of the testator. There is testimony that the testator told his grandchildren (contestants) that he would provide for them while the will does not do that. The contestants established a confidential relationship, the opportunity, and a motive for undue influence and that during his last years the testator was virtually dependent upon his daughters, two of the principal beneficiaries. There is proof that the daughters made a daily charge for nursing their brother during his last illness, which indicates a grasping attitude by the daughters and a harsh and unnatural family relationship. Proof of this type simply sets the stage. Contestants must go forward and prove in some fashion that the will as written resulted from the daughters substituting their mind and will for that of the testator. Here the will and the circumstances raise suspicion, but it does not supply proof of the vital facts of undue influence-the substitution of a plan of testamentary disposition by another as the will of the testator.

The proof fails to show the circumstances under which the will was executed other than as set out by the Court of Civil Appeals from whose opinion we quote as follows (268 S.W.2d 228):

'The record here is silent as to who prepared the will of Jasper Pool; however, both parties assumed in their briefs that the will of Jasper Pool, here tendered for probate, was prepared by the Hon. P. M. Rice of Hamilton. Judge Rice did not testify. The record here shows that the will was executed by the testator in the County Clerk's office at the courthouse in Hamilton. There is an absence of testimony as to how the testator got in touch with Judge Rice; however, Mrs. Boyer testified to the effect that she did not know about the execution of the will until somtime after it was executed and she did not know how her father got to Hamilton but later learned that a former acquaintance by the name of Edwards took her father in a car to Hamilton. (Edwards was not tendered as a witness). There is an absence of testimony as to whether the will was prepared by Judge Rice on the day it was executed, as well as an absence of testimony as to who employed Judge Rice to prepare the will and who gave him the instructions as to the provisions of the will. The will was typewritten and was attested by three subscribing witnesses. There is no evidence that Jasper Pool had been in Hamilton at any time just prior to the time that he executed the will, or that he had seen and talked with Judge Rice.'

One factor to be considered is that the will was executed in a public place (court house) with no one present who is alleged to have used undue influence at that time. In Besteiro v. Besteiro, Tex.Com.App., 65 S.W.2d 759, 761, this Court said:

'The undue influence which will vitiate a will must be exercised at the time of its making. Holt v. Guerguin, supra. We think the same rule applies to the deed in question. In this connection we hold that, if there was evidence to show that either Maria Inez or Rosalia had unduly influenced the execution of this deed by acts done or things said prior to its execution, and that such acts done or things said operated unduly on the mother's mind, so as to destroy her free agency at the time the deed was actually executed, then it could be said in law that such undue influence was exercised at the execution of the deed.'

See also Cameron v. Houston Land & Trust Co., Tex.Civ.App., 1948, 175 S.W.2d 468, error ref. w. o. m., and Naihaus v. Feigon, Tex.Civ.App., 1951, 244 S.W.2d 325, n. r. e.

In fact it is not shown that any of the children had any knowledge that the will was being executed until afterwards. There is no evidence of the direct intervention of the will and mind of the daughters or of the dominance of the free will of the testator in the preparation and execution of the will so as to bring this case within Long v. Long, 133 Tex. 96, 125 S.W.2d 1034. The fact that the testator in his will adopted the daughter's version of the debt question does not prove that he did not do so of his own free will. There is no proof raising a fact issue that the testator did not make a free decision. Proof that the daughters were favored and that the contestants got nothing under the will is not proof that the daughters did in fact substitute their mind and will for the mind and will of the testator. Since witnesses were available to establish the facts surrounding the preparation and planning of the will, we must hold that the contestants have failed to prove their case. Proof of the planning and preparation of the will, where the witnesses are available, is the heart of an undue influence case.

Respondents urge the case of Barksdale v. Dobbins, Tex.Civ.App., 1940, 141 S.W.2d 1035, error ref., in which the facts were very like the case at bar and in which a jury verdict of undue influence was sustained. The factual situations in undue influence cases are never the same. The distinction between proving undue influence by circumstantial evidence and merely raising a 'bare suspicion' as in Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358, is not one which can be defined with certain limits, for the problem is essentially one of degree.

In the case of Barksdale v. Dobbins, supra, there was evidence that the testator was mentally feeble and that his mental condition had deteriorated with age. In the case at bar there is no such testimony. A number of witnesses testified that testator was active and spry, drove his car under a limited driver's license, and in general took care of his own business. The only testimony which we can find in the record which might be contended as suggesting mental weakness was that of a neighbor, Gordon Nettleton, who had known testator a long time. It is:

'Q. What did you consider his mental condition during the last few years? A. Well, he was all right, I thought.

'Q. Would you discuss things with him, affairs of the community, and politics and such things? A. Yes, I would play dominoes with him and talk about all that, a right smart.

'Q. A good portion of the last part of his life he would go to Shive and play dominoes? A. Yes.

'Q. Was he apparently a man of strong mind? A. Yes, I would think so.

'Q. As to whether he was a man easy to influence? A. Well, I don't know about that. He might could be influenced. I don't know, but he always seemed right fair.'

But when this testimony is fairly examined in its context it will not make a fact issue of mental weakness.

Two medical witnesses testified for the proponents. The contestants offered no medical evidence of the testator's mental strength and condition. Dr. H. R. Nassour, Jr., testified that he was the physician and surgeon who had treated the testator for about four years before his last illness and through and including his last illness. He testified that his death was due to a general weakness brought on by a chronic kidney condition and hardening of the arteries, that hardening of the arteries generally sets in at the age of forty and continues progressively until death in most people and affects people differently. He testified as follows:

'Q. I will ask you whether or not you took notice of him with reference to his ability and his capacity. He was an old man? A. Well, he was old in some ways but quite a spry fellow.

'Q. He was more active than ordinarily for a man of 90 years? A. I would say much more so.

'Q. In his last illness he spent several weeks in your institution? A. Quite a few months.

'Q. Under your treatment? A. That is right.

'Q. I will ask whether or not there was anything wrong with his mental condition? at that time? A. Not that I noticed until the last two or three days of his life.

'Q. He was apparently sane and alert up until the last? A. Very alert, yes.

'Q. Is it your opinion that he was of sound mind all those months except the last two or three days?...