Brewer v. Foreman

• Decision Date: 15 November 1962
• Docket Number: No. 14009,14009
• Citation: 362 S.W.2d 350
• Parties: Ben BREWER et al., Appellants, v. Cecil FOREMAN et al., Appellees.
• Court: Texas Court of Appeals

Page 350

362 S.W.2d 350

Ben BREWER et al., Appellants, v. Cecil FOREMAN et al., Appellees.

No. 14009.

Court of Civil Appeals of Texas, Houston.

Nov. 15, 1962.

Rehearing Denied Dec. 6, 1962.

M. M. Williams, Houston, for appellants.

Schmidt, Garrett & Hensley, Max Garrett, Houston, for appellees.

COLEMAN, Justice.

Appellants, Ben Brewer and his wife, Ann Brewer, were the proponents of a will, which was admitted to probate by the Probate Court of Harris County, Texas, as the last will of Cornelia Foreman Culpepper. On appeal to the District Court of Harris County, Texas, after trial to a jury, probate was denied.

Issues were submitted to the jury on contestants' contentions that Mrs. Culpepper was not mentally competent to execute a will and that the will offered for probate was a result of undue influence exercised on Mrs. Culpepper by Ann Brewer. The jury was unable to agree on an answer to the issue on mental capacity, but did answer that the will was the result of undue influence. Judgment was entered on the partial verdict.

Appellants contend that there was no evidence to support the jury verdict. In considering this assignment we must accept as true all of the evidence tending to support the jury verdict. If the evidence is susceptible of different reasonable interpretations, we must adopt that interpretation most favorable to the verdict. Long v. Long, 133 Tex. 96, 125 S.W.2d 1034.

The will offered for probate was dated October 16, 1957, and by its terms leaves all of the property belonging to Mrs. Culpepper to Ann and Ben Brewer, except her bonds, money on hand and bank accounts, which were left to Betty Knight and Mrs. Bob Gilmer equally. None of the devisees were related to Mrs. Culpepper.

The contestants are Cecil Foreman, a brother, Madora F. Blount, a sister, Dora Lee Foreman, a niece, and Clarence Fisher, a nephew. At the time the will was executed Mrs. Culpepper was 77 years of age. There was no visiting back and forth and very little correspondence between Mrs Culpepper and her relatives, although Dora Lee Foreman, who lived in California, had visited with her and with Raiford Perritt, Dora Lee's half-brother, in 1955, 1956 and 1958. Mr. and Mrs. Perritt visited Mrs. Culpepper regularly. At a time near the date on which the will was executed, whether before or after is not shown, Mrs. Culpepper received a letter from her brother informing her of the death of her sister Nettie, and she called Cecil at his home in Doyline, Louisiana. There is no evidence of close attachment between Mrs. Culpepper and her relatives. Contestants introduced into evidence copies of instruments purporting to be wills executed by Mrs. Culpepper in 1929 and in 1950 by which all of her property was left to Mrs. Ellen Flemming Smith, who was not related to her, but was a lifelong friend, and had visited or talked with her almost daily for many years.

Mr. and Mrs. Brewer came to the city of Houston on October 19, 1956. Mr. Brewer was seeking work as a millwright. They rented an apartment for one week from Mrs. Culpepper. Mr. Brewer secured jobs through the union hall from time to time. When he had no work, he would often do maintenance work on Mrs. Culpepper's property. Mrs. Brewer began to clean the halls of the apartment house. When apartments became vacant, she would clean them so that they could be rented. After Mrs. Culpepper's maid quit, she did her apartment. Mrs. Brewer testified that she did not become a close friend of Mrs. Culpepper until the Spring of 1957 and not real close until April 19, 1957. Mrs. Brewer was a licensed beautician in Kentucky and she took care of Mrs. Culpepper's hair and performed other personal services for her. After a few months Mrs. Culpepper quit charging the Brewers rent for the apartment they used. There is little, if any, dispute about the facts set out above.

Other facts are disputed, but from the evidence the jury could reasonably have believed the matters next set out, some of which were strongly controverted.

Mrs. Culpepper was suffering from heart trouble, periodic vaginal bleeding, arteriosclerosis, high blood pressure, a tumor on her hip, kidney or bladder trouble, varicose veins, arthritis and rheumatism. She was an alcoholic and had some difficulty with her memory. She was vain and proud and craved attention and affection. She left her apartment only once or twice in five years. She took medication regularly, including codeine and digitalis, and complained of pain. She was able to walk around her apartment and her friends visited her regularly. She had parties on her birthdays and other occasions.

Prior to April, 1957, Mrs. Smith and some of testatrix's tenants ran errands for her, got her groceries, and did her banking. She had a maid to cook and clean her apartment. Her savings account was made to her or Mrs. Smith, as were some bonds she had purchased. Her papers and bonds were kept in a safe deposit box rented in both her name and that of Mrs. Smith.

After April, 1957, Mrs. Brewer cooked her meals, upholstered some of her furniture, and made slacks and shirts for her. She prepared the apartments and showed them to prospective tenants, but Mrs. Culpepper collected the rents and wrote or signed all checks. After the will in question was signed, Mrs. Culpepper asked Mrs. Smith to remove her name as cotenant of the safe deposit box and Mrs. Brewer's name was substituted.

In September and October, 1957, Mrs. Smith and Mr. and Mrs. Perritt noticed a change in the friendly relationship existing between them and Mrs. Culpepper. However, they continued to visit and call Mrs. Culpepper on the telephone. Mrs. Culpepper received numerous visitors in private, both before and after the will in question was executed.

While the testimony of the attorney who drew the will would be considered that of an interested witness, it is undisputed that his name was secured by Mrs. Culpepper from a list furnished her by her bank. He came to her house at her request to consult with her about a will change. He prepared the will at his office in accordance with the instructions given him at that time and a day or two later returned to her home where the will was executed. Mrs. Culpepper requested two of her tenants to witness the will. There is no evidence that either Ben Brewer or Ann Brewer had discussed the will with the attorney or either of the witnesses prior to the execution of the will, and the lawyer testified that he had never seen nor talked to the Brewers until several months after the will was executed. The will was placed with the bank for safekeeping and, after Mrs. Culpepper's death, was delivered by the bank to the County Clerk. Mrs. Culpepper requested Mrs. Smith to get the old will out of the bank and bring it to her because she wanted to add a codicil to it and she told Mrs. Honish, one of the attesting witnesses, that she had made a small change in her will. After the will was executed she told Mr. Perritt that she had provided in her will that she be cremated although, in fact, she had signed a separate instrument so directing.

During the summer of 1957 Mrs. Brewer told Mrs. Culpepper that she was going back to Kentucky on a visit. The idea that the Brewers might return to Kentucky, where they had lived prior to coming to Houston, worried Mrs. Culpepper. Mrs. Brewer testified that Mrs. Culpepper told her that she would always have a home with her. In June, 1957, Mrs. Culpepper wrote an instrument in her own handwriting, apparently intended as a codicil to an existing will, reading: '6/4/57 While in my right mind, at my death am leaving property at 2905 Austin St. to Mrs. & Mr. Ben Brewer--other wise my will stands as is, my diamond ring to Mrs. Pearl Perritte. / s/ Mrs. Cornelia Culpeper. Witnesses /s/ Mrs. Josie Kelley /s/ Mrs. E. N. Burger.' This instrument was given to Mrs. Brewer. The diamond ring was given to Mrs. Perritt before Mrs. Culpepper's death. After the will was executed in October, Mrs. Culpepper said nothing further to Mrs. Smith indicating concern that the Brewers would leave her. Mrs. Brewer knew that Mrs. Culpepper intended to make a will leaving everything to her. Neither Mrs. Brewer nor Mrs. Culpepper told the Perritts, Mrs. Smith, or the contestants that a new will had been executed.

Dr. Corbett treated Mrs. Culpepper from April 29, 1957, until her death. He was introduced to Mrs. Culpepper by Mrs. Brewer. The doctor testified that Mrs. Culpepper had a sound mind during October, 1957, and a number of lay witnesses testified concerning her mental capacity. There was testimony from which the jury could conclude that Mrs. Culpepper suffered from weaknesses of the mind and body caused by old age, disease, and the use of alcohol.

In the case of Long v. Long, supra, the Supreme Court of Texas announced certain general rules which govern cases of undue influence. It stated that no two cases are alike and each must depend largely on its own facts and circumstances. After giving several definitions of undue influence, the Court stated:

'2. It cannot be said that every influence exerted by one person over the mind of another is undue. The influence is not undue unless the free agency of the testator has been destroyed, and a will produced that such testator did not desire to make. 42 Tex.Jur., p. 793, sec. 4.

'3. In will cases, after mental capacity has been shown, the burden of proving undue influence is on the party contesting the probate of the will. Hart v. Hart, Tex.Civ.App., 110 S.W. 91.

'4. It is rarely possible to prove undue influence by what is generally known as direct testimony. Undue influence is usually a subtle thing, and by its very nature it usually involves an extended course of dealings and circumstances. Usually a person charging undue influence must substantiate such charges by circumstances extending over a considerable length of time. It is therefore the settled rule that undue influence can be established by what...