Bradshaw v. Brown

• Decision Date: 17 January 1920
• Docket Number: (No. 8219.)
• Citation: 218 S.W. 1071
• Parties: BRADSHAW v. BROWN.
• Court: Texas Court of Appeals

218 S.W. 1071

BRADSHAW v. BROWN.

(No. 8219.)

Court of Civil Appeals of Texas. Dallas.

January 17, 1920.

Rehearing Denied February 28, 1920.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Proceedings by W. A. Bradshaw to probate instrument purporting to be last will and testament of Mrs. S. A. Brown, contested by F. A. Brown. Judgment denying probate of will, and proponent appeals. Affirmed.

Clirit, Chilton & Eades, of Dallas, for appellant.

Thompson, Knight, Baker & Harris, of Dallas, for appellee.

TALBOT, J.

The appellant, W. A. Bradshaw, offered for probate in the county court of Dallas county, Tex., an instrument purporting to be the last will and testament of Mrs. S. A. Brown. This instrument was dated October 7, 1916. Mrs. Brown died November 6, 1916. She was about 79 years old at the date of her death, and had been sick and confined to her bed and room for about two months prior thereto. She left surviving her husband, F. A. Brown, who was about 82 years of age. The couple had been married since about 1884, but had no children, though the husband, F. A. Brown, had a son by a former marriage, named Ernest Brown. The property they owned was a tract of 150 acres of land situated in Dallas county, upon which they resided as their homestead, and comparatively a small amount of personal property. In the instrument offered for probate, several small devises were made to Mrs. Brown's relatives, but the greater part of her property was given to her nephews, W. A. Bradshaw, the proponent, and Robert Bradshaw. None of it was bequeathed to her husband, but all devised subject to his homestead rights. The proponent, W. A. Bradshaw, was named as independent executor. F. A. Brown, the husband, contested the application of W. A. Bradshaw to probate the instrument as the will of Mrs. Brown on the grounds that Mrs. Brown, at the time of its execution, did not possess testamentary capacity, and was unduly influenced by the said W. A. Bradshaw to execute the same. Judgment was rendered in the county court admitting the alleged will to probate, and the contestant appealed to the district court, where trial was had before a jury. After defining testamentary capacity and undue influence, the district judge submitted to the jury for their determination the following issues:

First. "Did the deceased, Mrs. S. A. Brown, at the time of making the will in question, have testamentary capacity as that term has been defined?" Second. "Was the deceased, Mrs. S. A. Brown, at the time of making the will in question, unduly influenced by W. A. Bradshaw as undue influence has been defined?"

The jury answered both of these questions in the affirmative, and judgment was rendered, denying probate of the will. From this judgment the proponent appealed.

The first contention of the appellant is that—

"There was no substantial evidence to sustain the verdict of the jury, finding against the validity of the will on the issue of testamentary capacity."

To ascertain whether or not this view of the evidence is correct, we have carefully read and re-read the statement of facts. The rule is that—

"When the record presents a state of facts from which an ultimate conclusion must be drawn, and reasonable minds might differ as to what conclusion should be drawn from the ultimate facts proven, it then becomes a jury question."

The ultimate fact here to be determined is: Did the testator, Mrs. Brown, possess a mind capable of understanding what she was doing in making the will; an intelligent perception and understanding of the nature and extent of her property; the disposition she desired to make of it; the persons she desired to be the recipients of her bounty; the mode of distribution among them; and a mind capable of exercising judgment, reason, and deliberation, and capable of weighing the consequences of her will to a reasonable degree, and the effect of it upon her estate and family at the time of the execution of the will? It is not necessary that the mind of the testator retain all the vigor and force incident to youth, or that which attends upon robust physical health, in order that he have the capacity to which we have referred. So that the mere fact, standing alone, that he is old, in feeble health, or that his memory does not possess the vigor of earlier years, or the fact that he has excluded from his bounty some or all of his legal heirs, etc., will not, in and of themselves, defeat a will executed by him, if, notwithstanding this, he retains sufficient mind to understand and appreciate the things above mentioned.

As shown in our statement of the case, the issue of whether or not Mrs. Brown possessed "testamentary capacity" at the time she executed the will in question was submitted by the court to the jury, and their verdict is that she did not. If, therefore, the record discloses evidence supporting and sustaining this finding, we are bound by it. So, with the view of ascertaining whether or not there is, in the record, sufficient evidence upon which a jury might reasonably base a conclusion that the testator in this instance, at the time of the execution of the instrument purporting to be her will, did not have that testamentary capacity required in order to enable her to make a binding will, we have carefully examined the record, and, bearing in mind the rules laid down for guidance in such matters, see no clear or proper way to escape the conclusion that the record presents a state of facts from which reasonable minds, at least, might reach different conclusions in regard to the question and that, this being true, it must be held that the evidence was sufficient to justify the jury's finding.

It would be impracticable to quote or state all the testimony adduced on the issue. Enough to show that the issue was raised, and hence proper for the determination of the jury, must suffice.

Mrs. May King, a neighbor and intimate friend of the testatrix, and who visited her every few days, testified, in effect, that Mrs. Brown acted different from the way a normal person would act; that she was very childish, and that while engaged in a very entertaining conversation, she would suddenly sit down on the floor and take off her shoes and stockings and ask the witness to look at her feet; that at other times she would, all through the conversation, get up and run out in the kitchen without making any explanation of why she did it; that she was very thin and emaciated, and her mind was "kinder flighty." That in her conversations she would say things that indicated that she did not know what she possessed; that she never did know some of her clothing; that she was very feeble-minded and like a child; that in her judgment Mrs. Brown was not capable of transacting any business or making a will; that Mrs. Brown apparently suffered very much during her last illness, which continued from some time in September, 1916, until her death on the 6th day of November, 1916; that she was so restless she was constantly "grabbing the clothes and pulling them up, and would see boogies and things"; that she was confined to her room from about the 1st of September, 1916, until her death in November; that there were a great many things Mrs. Brown did that caused her to form the conclusion she had reached in regard to her mental condition; that she was flighty, going from one thing to another; that she could not carry on a connected conversation very long; that "she would talk on subjects, and then jump off on something else that was not at all in keeping with the conversation she was pursuing previously."

Miss Pauline Elsby testified: That during the summer and fall of 1916 she was with Mrs. Brown quite often. That during the last sickness of Mrs. Brown that fall she was with her every night or every other night. That she sat up with her. That Mrs. Brown became sick some time in September, 1916, and died the 5th or 6th of November, 1916. That from her observation Mrs. Brown was not physically or mentally very strong. That she would frequently speak of the wind talking to her. That she would hear the windows rattle and say they were talking to her. That they would say, "Come home, Miss Ann, come home." That when she was talking about the wind saying "Come home," she didn't think she was at home all the time; that she did not know where she was part of the time. That while she was sick she thought she was in some kind of an institution for girls, and frequently would "say to the girls to come in and visit her, and she was looking for them to come back; that was, crazy like." That Mrs. Brown never knew her own clothes. That she would beg the witness to go and hunt up her clothes and dress her in them. That the clothes she mentioned she did not have. That from the witness' observation of Mrs. Brown during the period of time she knew her, and especially during her last sickness, she would say Mrs. Brown was of unsound mind. That she did not think Mrs. Brown was capable of attending to business of any sort.

Miss Frances King, who had known Mrs. Brown about 3 years, and who visited her two or three times a week, testified that in Mrs. Brown's last sickness she did not know her own clothes. That one time during her last sickness Mrs. Brown did not know the nightgown she had on. That Mrs. Brown said, "That is not my nightgown; I know that." That witness replied, "Of course it is," and Mrs. Brown said, "No it is not; I have somebody else's nightgown on." This witness further said Mrs. Brown was childish, and that by childishness she meant "an undeveloped child—decidedly undeveloped. She was decidedly unsound; you could see that very plainly by looking at her."

Mrs. Ernest Brown, who had known Mrs. S. A. Brown, the testatrix about 25 years, and who had seen much of her, testified: That the testatrix was old, frail, and feeble-minded. That on one occasion, while the witness was visiting the testatrix, she rushed into the room very much...