Buchanan v. Davis

• Decision Date: 23 January 1929
• Docket Number: (Nos. 1145-5099.)
• Citation: 12 S.W.2d 978
• Parties: BUCHANAN et al. v. DAVIS et al.
• Court: Texas Supreme Court

12 S.W.2d 978

BUCHANAN et al. v. DAVIS et al.

(Nos. 1145-5099.)

Commission of Appeals of Texas, Section A.

January 23, 1929.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit by Loleta Davis and others against W. M. Buchanan and others. Judgment for plaintiffs was affirmed (300 S. W. 985), and defendants bring error. Affirmed.

Robert Thompson and C. F. Greenwood, both of Dallas, John B. Howard, of El Paso, and Black & Graves, of Austin, for plaintiffs in error.

Coates & Mastin, of Fort Worth, for defendants in error.

NICKELS, J.

The will of Ophelia Buchanan was attacked for absence of testamentary capacity and presence (and procuring effect) of undue influence. The jury sustained both charges, and the judgment nullifying the will was affirmed by the Court of Civil Appeals. 300 S. W. 985. Writ of error was allowed each of two groups of appellants upon petitions claiming error in matters hereinafter discussed.

1. Jurisdiction of the district court is lacking, it is said, because there was no final judgment of the county court in probate. Except for recitals immaterial here and one to be mentioned, the judgment of the county court is set out in the opinion of the Court of Civil Appeals. 300 S. W. 985, 987. It discloses presence and consideration: (a) Of a "plea in abatement" by one group of defendants and a "special exception" by another asserting the bar of four years' limitation, whose perfection, it was said, appeared in the face of the petition; (b) of a "special exception" directed at lack of indispensible parties.

Recital of the questions then presented and of the judge's opinion touching same having been made, it was then (and "therefore") "ordered, adjudged and decreed * * * that the plaintiffs take nothing by their contest and that the defendants go hence without day and that they recover of the plaintiffs their costs."

That was a final judgment within the meaning of the cases cited by plaintiffs in error (e. g., Hanks v. Thompson, 5 Tex. 6; Bradshaw v. Davis, 8 Tex. 344; Hughes v. Lane, 25 Tex. 356, 367; Texas Land & Loan Co. v. Winter, 93 Tex. 560, 57 S. W. 39), for the "consequence of the ruling," on plea and exceptions, "to the parties was declared" (T. L. & L. Co. v. Winter, supra).

Outside the decretal, and recitals, mentioned, the judgment presents indicia of intent for its finality of disposition of the rights of the parties, for the "plea in abatement" and one of the "exceptions" were treated as presenting matter in bar and not merely in delay or postponment. So much is declared or implied in a recitation (not included in reproduction of the judgment in the opinion of the Court of Civil Appeals), immediately preceding the decretal, that "plaintiffs * * * requested the right to present testimony on each and all the issues as contained in their amended petition * * * upon which they went to trial which request was refused by the court for the reason that the introduction of said testimony would be immaterial because of the court's ruling on the plea in abatement and the special exceptions." Cf. Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 683, 690, 15 S. Ct. 733, 39 L. Ed. 859.

2. Perfected bar of four years' limitation (articles 5534 and 5536, R. S. 1925) is asserted as a reason why verdict for plaintiffs in error should have been instructed. And error is predicated upon the judge's refusal to give certain "special issues" relating to defense of limitation.

The case is governed by the statutes as they existed prior to the 1925 codification and re-enactment. Accordingly, the defense is not available as against those defendants in error who were minors during the prescriptive period. Article 5708, R. S. 1911; article 5708, Vernon's Sayles' Tex. Civ. Stat. 1914; Kopperl v. Sterling (Tex. Civ. App. writ denied) 241 S. W. 553; Stephens v. Leatherwood (Tex. Civ. App.) 295 S. W. 236. Whether it would be available in respect to a charge of "undue influence," as "fraud," under present article 5536, R. S. 1925, in view of the rearrangement of old article 5708, R. S. 1911 (see articles 5534, 5535, and 5518, R. S. 1925), is presently an immaterial question. Validity of the will as evidence (may be source) of rights, and not rights of themselves, is the subject of litigation, and, because of the necessity of the adults as parties and the general effect of annulment of a will at the suit of any party, the disability of some of the contestants precluded the defense as against the others.

3. Undue influence was not issuable, it is said, and hence verdict for plaintiffs in error ought have been directed. The matter as presented has a double aspect, with an incidental phase arising on admissibility, vel non, of certain testimony; it will be considered in its several relations.

And, first (1), concerning the fact of exertion, or attempt to exert, such influence: Testatrix and husband were possessed of a community estate, it appears, of substantial value. There is evidence to support an inference that each of them had a separate estate in property included in the mass, of which community property made by far the larger part. Testatrix was the mother of children by a previous husband, as also of children of the present husband.

That testatrix and husband intimately discussed and considered testamentary dispositions is not questionable. To this reference is made by the husband in a letter addressed to A. J. Buchanan (one of the first group of children) about two months after death of testatrix, in these words:

"Your mother was very free and pointed in saying she wanted you to have something, but did not say how much. Then, I suggested a thousand dollars, which was perfectly satisfactory. One hundred to Clarence" (another of the first set of children), "saying it was useless to give him anything owing to the fact it would be spent for whisky."

Mrs. Tennie Buchanan testified to a "conversation * * * about the provisions of the will" had with Mr. Buchanan, surviving husband of testatrix, a short time after date of the letter just mentioned in which "he said Clyde Buchanan" (one of the second group of children) "was willed $25.00 just to get by * * * I willed Clyde $25.00 to just get by." This had reference to a bequest in Mrs. Buchanan's will. And there is evidence supporting inference of bad feeling (on Mr. Buchanan's part) toward Clyde.

In the first and second sentences of that part of the letter quoted, Mr. Buchanan plainly declared his exercise of influence in determining the amount, etc., of property to be given A. J. Buchanan. In the third sentence, language was used which bears that interpretation (in light of its context and in view of the bequest actually made) which imports direct exertion of influence touching nature and amount of "gift" to "Clarence." In his testimony, Mr. Buchanan stated or implied that the third sentence, as quoted, meant, or was intended to mean, that his wife had decided upon $100 as the amount of this bequest, and that she was author of the statement, "It was useless to give anything owing to the fact it would be spent for whisky." That explanation, however, was not conclusive, as is manifest.

In the first part of the excerpt of testimony of Mrs. Tennie Buchanan, Mr. Buchanan is made to declare as a fact the motive which actuated his wife in relation to Clyde. He denied making any such statement to Mrs. Tennie Buchanan; hence there was lacking explanation by him that any statement by his wife was source of his knowledge of her motive. In consequence, his first statement might be taken as implying that which his second declaration states — that is, that, while the manual act was that of his wife, it did but represent his own will, for he is made to say, "I willed Clyde $25.00 to just get by."

The declarations thus made in the letter by Mr. Buchanan and those attributed to him by Mrs. Tennie Buchanan make up evidence of use of influence by him in respect to subject-matter of the will. And other testimony shows that the transactions mentioned in the letter and in his statements to Mrs. Tennie Buchanan, as related by her, occurred in immediate relation, in time and manner, to actual preparation and execution of the document.

The jurors were free, of course, to attribute to Mr. Buchanan the declarations contained in the letter as also the declarations charged to him by Mrs. Tennie Buchanan; upon doing that, they might reasonably find direct use of influence. And whether exerted influence thus found was due or undue is a question which at once directs attention to the probabilities of effect (knowledge of chances in that regard being imputed to the person using influence), since an actual result may be viewed as an intended result if, as circumstanced, it was a likely result. See Soon Hing v. Crowley, 113 U. S. 703, 710, 5 S. Ct. 730, 28 L. Ed. 1145.

Hence mental state has relevancy in the present inquiry, for it, whatever it was, conditioned the use of such influence as was employed. And, while the direct inquiry here is about intellect and not physique, and while physical decrepitude is not sufficient of itself to import disorganized mentality or abnormal susceptibility (McIntosh v. Moore, 22 Tex. Civ. App. 22, 53 S. W. 611, 615; Gallagher v. Neilon [Tex. Civ. App.] 121 S. W. 564, 568, 569; Salinas v. Garcia [Tex. Civ. App.] 135 S. W. 591), yet nature has imposed that union of mind and matter whose delicate interrelationship may not be ignored. It is known of us all that whatever hurts the flesh reacts somewhat upon the media of intelligence; and the idea that injury to or impairment of one part of the finely poised organism does not to some extent impair all others has repudiation in the general experience and observation of mankind. In consequence, physical condition is a circumstance entitled to consideration in ascertainment of intellectual state. Johnson v. Ry. Co., 36 Tex. Civ. App. 487, 81 S. W. 1198; Bradshaw v. Brown (Tex....