Brown v. Mitchell

• Decision Date: 05 November 1889
• Citation: 12 S.W. 606
• Parties: BROWN <I>v.</I> MITCHELL <I>et al.</I>
• Court: Texas Supreme Court

12 S.W. 606

BROWNv.

MITCHELL et al.

Supreme Court of Texas.

November 5, 1889.

Appeal from Tarrant county court; R. J. BOYKIN, Special Judge.

F. M. Brantly and D. W. Humphreys, for appellant. Ball & McCart, Ross, Herd & Ross, and Templeton & Kern, for appellees.

STAYTON, C. J.

This is a proceeding instituted in the county court for Tarrant county, by John Mitchell and Lizzie Winters, to set aside the probate of the will of Mrs. Lizzie Brown. Mitchell claimed to be the son of Mrs. Brown, and Lizzie Winters claimed to be an adopted daughter. Mrs. Lizzie Brown was the wife of appellant at the time of her death, and there was evidence tending to show that John Mitchell was her son by a former marriage. The evidence of the relationship of Lizzie Winters to Mrs. Brown consisted (1) of a copy of an instrument purporting to be signed by Brown and wife, and by the parents of the child, whereby Brown and wife, in terms, adopted the child, and her parents consented thereto, and agreed that she should bear the name of her adopted parents in the future. This was acknowledged by all the parties to it, before a notary public in the state of Michigan, where all the parties were then domiciled. (2) A decree of the probate court for Wayne county, state of Michigan, showing its action on the paper before referred to, which, after reciting the substance of the contents of the act of adoption, and many other things, among which was a reference to the act of the legislature of the state under which the procedure was had, proceeded as follows: "I, the said judge of probate, in pursuance of the act aforesaid, do order that the said George and Elizabeth Brown do stand in the place of parents to said child, and that her name be changed to `Nettie Elizabeth Brown,' and that this order be entered in the journal of the probate court for said county of Wayne. [Signed] ALBERT H. WILKINSON, Judge of Probate." The decree refers to the act of adoption, and is duly certified in accordance with the act of congress. This evidence was objected to on the ground (1) that the act of adoption was not acknowledged, or certified to have been acknowledged, as are deeds and other papers executed by married women required to be by the laws of this state; (2) because no proof was offered of any law of the state of Michigan authorizing the proceedings recited in the papers. These objections were overruled, and, had there been nothing more than the act of adoption, signed by the parties and acknowledged as it was, the objection should have been sustained on both grounds urged; but we are of opinion that the decree of the probate court was properly admitted without proof as to the law in force in the state of Michigan; for it ought to be presumed, in the absence of evidence to the contrary, that the court had jurisdiction, and that its proceedings were legal. Bryant v. Kelton, 1 Tex. 436. Such presumption, however, would not be conclusive, and it would be the right of appellant to show that the court had no jurisdiction either of the subject-matter or parties. It is proper, further, to say that the fact of adoption was admitted by appellant. The only reason why the relationship of appellees to Mrs. Brown becomes important in this proceeding was that it was necessary for them, or at least one of them, to show an interest in the will. The action could have been sustained if only one of the contestants showed such interest. The answer of appellant denied that appellees were related to the testatrix; but neither party requested the court to submit an issue as to that, and none was submitted. It would seem that such an issue should be presented in cases of this character, and tried as are matters in abatement. No question is now raised as to the effect which could be given to an act of adoption by a married woman domiciled in another state.

Appellees asked that the probate of the will be set aside on two grounds: (1) Because it was executed through undue influence exercised over the testatrix by appellant and others; (2) because the testatrix had not sufficient mental capacity to make a will at the time it was executed. Appellant excepted specially to so much of the petition as set up undue influence, and the grounds of the exception were as follows: "That the petition failed to show the nature of, or what, fraud or undue influence was used or exercised, or how, or in what manner, the same was used or exercised, in order to procure the execution of such will." This was overruled. The averment of the petition was: "Your petitioners further allege that said Geo. B. Brown and J. G. Simpson conspired and confederated with themselves and others, and used and exercised undue influence over said Lizzie Brown, deceased, in order to fraudulently procure the execution of said instrument of writing." This was the mere statement of conclusions, without the statement of a single fact to support them, and the exception should have been sustained. Wright v. Wright, 3 Tex. 181; Hendrix v. Nunn, 46 Tex. 149. The evidence bearing on the issue of undue influence was no more specific than the pleading; and we are of the opinion that there was no such evidence as justified the court in submitting that issue to the jury. That such an issue was submitted is assigned as error, and the assignment must be sustained. The probate of a will cannot be set aside on proof of facts which, at most, do no more than show that opportunity to exercise undue influence may have existed, or to raise a bare suspicion that such influence may have been used.

The real issue in the case was whether Mrs. Brown had testamentary capacity at the time the will was executed; and on that question there was great conflict in the evidence. We do not deem it proper or necessary in the disposition of the case to express any opinion as to the sufficiency of the evidence to sustain or defeat the will. Many questions were...