Cameron v. Houston Land & Trust Co.

• Decision Date: 07 October 1943
• Docket Number: No. 11560.,11560.
• Citation: 175 S.W.2d 468
• Parties: CAMERON et al. v. HOUSTON LAND & TRUST CO. et al.
• Court: Texas Court of Appeals

175 S.W.2d 468

CAMERON et al. v. HOUSTON LAND & TRUST CO. et al.

No. 11560.

Court of Civil Appeals of Texas. Galveston.

October 7, 1943.

Rehearing Denied November 23, 1943.

Appeal from District Court, Harris County; Kenneth McCalla, Judge.

Will contest by Billie Clair Cameron and husband against Houston Land & Trust Company and others. From an adverse judgment, the contestants appeal.

Affirmed.

Bert H. Tunks, Mrs. Huis Coy, J. S. Bracewell, and Jesse A. Pardue, all of Houston, for appellants.

Charles Murphy, W. H. Davidson, Jr., and Chas. W. Bell, all of Houston (Fulbright, Crooker, Freeman & Bates, of Houston, of counsel), for appellees.

GRAVES, Justice.

This general statement, conceded by the appellees to be substantially correct as such, has been taken from the appellants' brief, after correction of the recitation in lines 5 and 6 thereof, "that there was no sufficient evidence as to any of the grounds of attack upon the will" so as to read, "there was not sufficient evidence to raise an issue of fact as to any of the grounds of attack upon the will", to-wit:

"This is a will contest. The testator was named William Hugh McCarn. The contestants (appellants here) are Mrs. Billie Clair Cameron, the daughter and only child of testator, and her husband, H. N. Cameron. The proponents (appellees here) are the Houston Land & Trust Company, Trustee, John Alvin McCarn, Daniel Oscar McCarn, brothers of testator, the legal representatives and heirs at law of Jeff McCarn, another brother of testator who died about a month after testator did, and Miss Maud Keen, a former employee and friend of testator. The will involved was admitted to probate in the County Court of Harris County, and the matter was brought into the District Court through the medium of a writ of certiorari. After presentation of evidence in the District Court, and overruling proponents' motion for instructed verdict, one special issue, inquiring as to testamentary capacity, was submitted to the jury, which, after deliberation, was unable to reach a verdict. After the jury had been dismissed, the trial court, on motion by the proponents, entered a judgment admitting the will to probate, concluding as a matter of law `that there was not sufficient evidence to raise an issue of fact as to any of the grounds of attack upon the will' asserted by the contestants. The contestants' motion for new trial was duly filed and presented, and was overruled. The contestants duly excepted and have perfected their appeal to this Honorable Court."

The will involved was conclusively shown to have been the second and last will executed by the testator, William Hugh McCarn, and bore date of April 20 of 1936, when he was 66 years old, which was six years before his death on April 3 of 1942, he then being 72. His estate was shown by the inventory filed in the county court to be of a value in excess of $111,000. As indicated, the appellant, Mrs. Cameron, was the testator's only child, he having left no surviving wife, and his other relatives at the time of his death being the appellees, Alvin and Oscar McCarn, who had no children, along with the three children of a third brother, Jeff McCarn, who had died soon after the testator had.

The appellants challenged the validity of the will in suit upon two grounds in the trial court: (1) That the testator did not have testamentary capacity at the time of executing it; (2) that it had been procured by undue influence exerted upon him by John Alvin McCarn, Daniel Oscar McCarn, and Jeff McCarn.

On appeal they, in their first three points of error, challenge the trial court's holding that there was not sufficient evidence to raise an issue of fact as to either the claimed want of testamentary capacity, or the exertion of such undue influence, while in their remaining three points they complain — in as many specific particulars — of the receipt by the court of certain testimony.

Without refining upon it, the controlling question the appeal presents is whether or not the trial court erred in its challenged holding as to the sufficiency of the evidence, which, as shown by its judgment, was in his verbis as follows:

"The court is of the opinion that no issuable fact was raised by the testimony, and that the testimony offered by plaintiffs and contestants does not raise any fact issue as to any of the grounds of attack made by them upon the said will; * * *

"And it appearing to the court from the undisputed evidence that the said William Hugh McCarn at the time of the execution of said will, to wit, on the 20th day of April, 1936, was more than twenty-one years of age, and of sound mind and had testamentary capacity, and that he is now dead; * * * that said William Hugh McCarn executed said will with the formalities and solemnities and under the circumstances required by law to make the same a valid will, and that the same is the last will and testament of said William Hugh McCarn."

After painstaking examination of the record, this court is unable to see eye-to-eye with appellants' attack upon the court's appraisal of the sufficiency of the evidence in either feature of the contest; to the contrary, it finds no testimony of any probative force tending to show exertion of any undue influence upon the testator in the execution of the will by any one of his named brothers, or any other person; nor does it find more than a scintilla or surmise — if that much — as to any lack of testamentary capacity to execute the declaredupon instrument as his will by the testator at the very time of its execution.

These conclusions will be commented upon in inverse order of their presentment, that is, the claim of undue influence first.

Although assembled in their brief by the appellees, it is thought the undisputed evidence shows these were, in material substance, the circumstances under which this will was executed.

"On the day of the execution of the will offered for probate, April 20, 1936, the testator, alone, walked into the drug store owned by his friend and tenant, W. R. Clayton, and requested Mr. Clayton and his clerk, Mr. Hodges, to sign it as witnesses, and stated to them that it was his will; testator signed the instrument in the presence of both the witnesses, and there was nothing unusual in his manner or acts, and Clayton testified that — in his opinion — at the time the testator executed the instrument he was of sound mind, and that the will had never been revoked. After the execution of his will, testator discussed with his close friends, Mr. Cohen and Mr. Weiner, and his sister-in-law, Mrs. Oscar McCarn, the manner in which he had disposed of his property, stating with reference to his daughter that he was going to leave her enough `so that she wouldn't go hungry', and that, because of her treatment of him, he was going to provide for her only in `a limited manner and that was all he was going to do.'"

"The evidence also shows without dispute that none of the beneficiaries under with the 1934 will, or the 1936 will, were present at the time of their execution; that in each instance the testator himself requested the attesting witnesses to sign his will with him. The witnesses were totally disinterested, and there is no express or direct testimony in the entire statement of facts showing that any beneficiary requested the testator to make a will, or in any manner undertook to influence or affect his decision. There is no testimony that the testator relied upon the judgment of any of the beneficiaries, or requested their opinions, or advice, about the making of his will, or any provision therein. The fact that testator fully understood the provisions of both of such wills, before and after making them, likewise appears to be undisputed."

The law upon the legal equivalent of these facts, as affecting the claim of undue influence upon a testator, seems to be authoritatively settled in Texas in these, among other, holdings, to-wit: In re Bartels' Estate, Tex.Civ.App., 164 S.W. 859; Mayes v. Mayes, Tex.Civ.App., 159 S.W. 919; Wilson v. Paulus, Tex.Com.App., 15 S.W.2d 571; McKenzie v. Grant, Tex.Civ. App., 93 S.W.2d 1160.

Appellants' contention upon this phase, thus stated by them in their brief, that "where a parent disinherits a child for a stranger or for collateral kin, that fact alone (coupled with opportunity) will make a jury-issue upon the question of undue influence, if not mental incapacity," which proposition is by them limited "to cases where the disinheritance was in favor of collateral kindred and strangers", is not considered to be the law in Texas, as declared in the authorities just cited; neither, it seems, did this court make any contrary statement of the rule, as appellants appear to think, in Rudersdorf v. Bowers, Tex.Civ.App., 112 S.W.2d 784; quite the contrary. It would serve no useful purpose to restate here the rationale of that decision, which had to do only with the question of testamentary capacity, since it clearly appears therefrom that it furnishes no authority for appellants' stated contention, even as affects the issue of mental incapacity, to say nothing of the further one here involved, of undue influence.

Indeed, this court does not find the law to have been so declared in Texas, as appellants' quoted and qualified statement puts it, upon either the question of undue influence or mental incapacity. Rather did this court, through its late Chief Justice Pleasants, in the Bartels case, directly declare the rule to be the other...