Brown v. Mitchell

• Decision Date: 17 June 1895
• Parties: BROWN v. MITCHELL et al.
• Court: Texas Supreme Court

31 S.W. 621

BROWN v. MITCHELL et al.

Supreme Court of Texas.

June 17, 1895.

Error to court of civil appeals of Second supreme judicial district.

Action by John Mitchell and another against George B. Brown, executor, to set aside the probate of the will of Mrs. Lizzie Brown. The court of civil appeals affirmed a judgment for plaintiffs (29 S. W. 927), and defendant brings error. Reversed.

F. M. Brantly and D. W. Humphreys, for plaintiff in error. Ball, Tempel & Ball, H. M. Chapman, and C. M. Templeton, for defendants in error.

BROWN, J.

Lizzie Brown and George B. Brown were husband and wife, and during the continuance of their marriage acquired certain property. Lizzie Brown executed a will, giving all her property to her husband, George Brown, and afterwards died in Tarrant county, Tex. This will was admitted to probate in Tarrant county. George B. Brown and his wife, Lizzie, at one time resided in the state of Michigan, in which state, during the marriage, they adopted a girl child, afterwards known as Lizzie Brown, which adoption was evidenced by a certain writing, and a judgment of a probate court of that state. John Mitchell claimed to be the son of the deceased, Lizzie Brown. John Mitchell and Lizzie Winter, formerly Lizzie Brown, the adopted daughter of George Brown and wife, instituted this suit in the district court of Tarrant county to set aside the probate of the will of Lizzie Brown, deceased, because of the alleged fact that Lizzie Brown, at the time of making the will, was not of sound mind, and had not mental capacity to make the will. The trial in the district court resulted in a verdict and judgment setting aside the probate of the will, and holding that it was of no effect. Upon appeal the court of civil appeals first reversed the judgment of the district court, and remanded the cause, but upon a motion for rehearing set aside that judgment, and affirmed the judgment of the district court. 29 S. W. 927. This case is presented to this court upon the following grounds of error: "That the court of civil appeals erred in refusing to sustain assignments presenting the following objections to the judgment of the district court: First. That the district court erred in refusing to suppress the deposition and certain interrogatories propounded to Mrs. Livingston, and the answers thereto. Second. That the court erred in admitting the answers of Mrs. Livingston and Mrs. Berquest to interrogatories concerning the mental capacity of the testatrix, because the said answers were the conclusions of the witnesses as to matter of law and fact. Third. That the court erred in admitting in evidence the copy of the proceedings in the probate court in Michigan concerning the adoption of Lizzie. Fourth. The court erred in admitting the testimony of John Mitchell as to certain facts tending to show that he was the son of the testatrix. Fifth. In excluding the evidence of W. R. McLaury of declarations made by the testatrix before her last sickness as to the manner in which she intended to dispose of her property by will, and also as to his having, at her request, prepared a will of the same import as the one probated. Sixth. In refusing to give the following special charge, asked by the defendant: `The jury are further instructed that the law does not require the same amount of mental capacity to make a valid will as to make an ordinary contract. The only capacity the law requires is that the testatrix shall, at the time of making or executing the will, know or understand what she is about, and to whom she is bequeathing or devising her property.'"

The first and second grounds of the application for writ of error in this case are not so presented in the record as to call upon this court to examine into the correctness of the ruling of the district court upon the matters to which they relate. The motion to suppress the deposition of Mrs. Livingston does not set out the questions nor answers to which objections are made, and there is no bill of exceptions in the record showing the form or substance of either. It is true that the court of civil appeals finds the form of the twelfth interrogatory and the answer thereto, which is likewise stated in the appellee's brief; but the record does not show that the district court overruled the motion as to the twelfth interrogatory and the answer thereto, and there appears to have been no objection at the trial to the introduction of the testimony of either Mrs. Livingston or Mrs. Berquest. We are referred to bills of exceptions numbered 4 and 5 in connection with these objections, but the pages of the record on which those bills of exceptions should appear are blank.

The third objection, which relates to admitting in evidence a copy of the proceedings of a probate court in Michigan, concerning the adoption of the child, Lizzie, was decided by this court on the former appeal against the contention of plaintiff in error, upon the ground that this court would presume jurisdiction in the court rendering the judgment, until the contrary should be made to appear by testimony offered by those who deny that the court had jurisdiction. No such testimony appears in this record, and we therefore hold that there was no error in admitting that record. Brown v. Mitchell, 75 Tex. 13, 12 S. W. 606.

The sixth ground relied upon is untenable. There was no reason to inform the jury that the law required a less amount of capacity to make a will than an ordinary contract. The jury would not be presumed to know what degree of capacity the law required to make a contract, and therefore could not make any proper comparison between the capacity of the testatrix, as shown by the evidence, and that which the law would require to enable her to make a binding contract.

John Mitchell, one of the plaintiffs, testified on direct examination that he was the son of Lizzie Brown. The defendant's counsel then asked the witness from what source he derived the information that the testatrix was his mother, to which he answered, "because she always called me her son." In answer to questions propounded by the plaintiffs' counsel, he stated, in substance: "I remember when I was a small boy that she nursed me. During my childhood and boyhood there was no question about my being her son, until this case came up,"—whereupon defendant moved the court to exclude all of the testimony of the said witness relative to his being the son of the testatrix, for the reason that the same referred to and stated transactions between the plaintiff and the deceased, and statements by the deceased, and was incompetent, and not pertinent to the issues in the case. It appears that the testimony of the witness was positive to the effect that he was the son of Lizzie Brown; that this was based in part upon Lizzie Brown's calling him her son, but it does not appear that it was based wholly upon that fact. The motion of the defendant was to exclude all of the testimony of the witness. This the court could not do. In the case of Hill v. Kerr, 78 Tex. 217, 14 S. W. 566, the witness had testified to the fact that certain field notes were filed in the general land office on a given date. Upon motion of the defendant the testimony was excluded, and this court said: "As to the fact and date of the return of the field notes, we fail to see the force of the objection. It was probably intended to object to the evidence upon the ground that the witness was testifying from the papers and records in the land office, and not from his personal knowledge. But such does not appear to be the case. He testifies positively to the fact, and, in the absence of some evidence showing the source of his information, we have no right to assume that he was not present when the certified copy of the field notes was filed. Other portions of his deposition render it probable that he was testifying, in part at least, from the records and memoranda of his office; but that does not justify the exclusion of so much of his testimony as is a direct and positive statement of a fact within his own knowledge." In this case it appears that the testimony of the witness was based upon other grounds than statements made by the deceased, if her utterances are to be so regarded; and, if the defendant desired to exclude the answer that the deceased "always called him her son," the motion should have applied to that portion, and the court was not called upon to cull out a particular part of the evidence upon a motion to exclude the whole, nor would it have been correct to exclude the positive statement of the witness not shown to be based solely upon the objectionable statement. The manner in which the question is presented does not call for an expression by this court as to the competency of the plaintiff, claiming to be an heir of the deceased, whose will was in controversy, to testify to statements made by the deceased tending to establish his heirship, and we therefore leave that question undecided. We have serious doubts that the calling of a child "son" is a "statement" within the meaning of the law.

Plaintiff in error offered to prove by W. R. McLaury: That about one year before Mrs. Brown died, and at another time, about six weeks before her death, she consulted with the witness with reference to making her will, and stated to him that she desired to make a will, leaving all her property to her husband, George B. Brown. Also that, in pursuance of the last interview, the witness prepared a will in accordance with her instructions, in substance the same as that in controversy, which was not executed on account of the interference of her husband, George B. Brown. That, after preparing the will, witness went to the bedroom of the testatrix, for the purpose of having the same executed, and when he was about to secure witnesses to the will, the plaintiff in error, the husband of the testatrix, objected to its execution, saying that she did not need to make a will then. It...