Campbell v. Campbell

• Decision Date: 07 June 1919
• Docket Number: (No. 8189.)
• Citation: 215 S.W. 134
• Parties: CAMPBELL v. CAMPBELL et al.
• Court: Texas Court of Appeals

215 S.W. 134

CAMPBELL v. CAMPBELL et al.

(No. 8189.)

Court of Civil Appeals of Texas. Dallas.

June 7, 1919.

Rehearing Denied October 18, 1919.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Proceeding by Roy C. Campbell for the probate of an alleged last will and testament of A. W. Campbell, which was opposed by Sarah H. Campbell and others, in which proceeding Sarah H. Campbell tendered for probate another alleged last will and testament. On appeal to the circuit court, after a judgment of the county court, admitting to probate the instrument tendered by Roy C. Campbell, probate of both instruments was denied, and Roy C. Campbell appeals, and Sarah H. Campbell also appeals. Affirmed.

John M. Terrell and John W. Pope, both of Dallas, for appellants.

Spence, Haven & Smithdeal and Holland & Bartlett, all of Dallas, for appellees.

RASBURY, J.

This is an appeal from the judgment of the trial court entered upon verdict of the jury finding that neither of two wills of A. W. Campbell should be probated. The matter was put in motion by appellant, Roy C. Campbell, son of the testator, who in the county court, with appropriate allegations, presented for probate the alleged last will and testament of the testator dated March 22, 1915, wherein he was nominated independent executor and made sole beneficiary of the testator's entire estate. Sarah H. Campbell, surviving spouse, and E. J. and P. S. Campbell, sons of the testator, contested the application on the ground that the testator did not possess testamentary capacity at the time the will was executed, and on the ground that the will, which was not witnessed, was not wholly in the handwriting of the testator nor signed by him. In the same proceeding appellee Sarah H. Campbell tendered for probate, with appropriate pleading, the alleged last will and testament of the testator dated April 6, 1912, wherein she was nominated independent executrix and made sole beneficiary of the testator's estate. E. J. and P. S. Campbell filed no pleading attacking the genuineness or contesting the probate of the will tendered by Sarah H. Campbell, save that each in their attack upon the will of March 22, 1915, prayed that that will be declared invalid, and that the estate of A. W. Campbell be permitted to descend according to the law of descent and distribution, or that the will of April 6, 1912, be probated. Roy C. Campbell in that respect merely alleged in the county and district courts that the will so tendered had been revoked by a later will, the one tendered by him. After hearing in the county court the will of March 22, 1915, was admitted to probate as the last will and testament of A. W. Campbell. Appeal was had to the district court, where trial was had before jury. After certain instruction the court submitted to the jury for special verdict (1) whether Campbell had testamentary capacity on March 22, 1915; (2) whether the instrument dated March 22, 1915, was wholly in the handwriting of Campbell; (3) whether Campbell signed that instrument. The jury returned negative answers to all the interrogatories. At the request of appellant, Roy C. Campbell, the court submitted to the jury for special verdict whether Campbell had testamentary capacity on April 6, 1912. The jury answered in the negative. Upon the answers to the four special issues the court, by appropriate decree, denied probate of both wills, from which decree Roy C. Campbell and Sarah H. Campbell have appealed.

A general statement of the facts will not be made for the reason that those necessary to be stated can be recited in considering the particular issues presented in the brief. It is convenient, however, and appropriate at this point to recite the substance of the wills. The will of April 6, 1912, after reciting that the testator was of sound mind and disposing memory, and after revoking all former wills, directs, in substance, (1) that testator's just debts shall be paid by his executrix; (2) gives, devises, and bequeaths all property which he may own at his death to his wife, Sarah H. Campbell; (3) nominates and appoints his wife independent executrix, etc. The will of March 22, 1915, is identical, save that the testator's son, Roy C. Campbell, is the beneficiary, and is nominated and appointed independent executor, etc.

The first issue presented arises upon the action of the court in overruling appellant Roy C. Campbell's special exception. As we have recited, the will of March 22, 1915, was admitted to probate in the county court. After its probate, and after Sarah H., E. J., and P. S. Campbell had appealed from such order, the county judge, upon application previously made by Sarah H. Campbell and agreed to by all claiming an interest in the estate, partitioned the common property of A. W. Campbell and his wife, Sarah H. Campbell, setting aside one-half thereof to Sarah and one-half to the estate of A. W. Campbell without prejudice to her right to contest the will of March 22, 1915, or to probate the will of April 6, 1912. In the district court appellant, Roy C. Campbell, by exception challenged the right of appellee Sarah H. Campbell to maintain the contest in the district court on the ground that by demanding and securing a partition of the common estate of herself and husband she had ratified the disposition made by the latter of his portion in the will of March 22, 1915. We cannot agree with the contention. Our statutes confer upon the surviving spouse the right to have his or her moiety of the common property partitioned at any time after grant of letters. Article 3556, Vernon's Sayles' Civ. Stats. The exercise of that legal right does not, in our opinion, constitute ratification. Ratification is generally defined as the sanctioning, adopting, or acquiescing in some act done under circumstances which ordinarily would not bind the one but for such assent, etc. By the will, conceding for the time its validity, the testator made no pretense of disposing of Sarah H. Campbell's portion of the common property. His portion alone was all that the will assumed to devise. As a consequence there was no voidable or other act to be ratified by Sarah H. Campbell, by which otherwise she would not be bound.

If the term ratification is inadvertently employed, and what is meant is election, as applied to wills, we are also of opinion that the contention is also without support in that rule, which, in substance, is that one who accepts a benefit under a will adopts it as a whole and renounces all rights inconsistent with the instrument. Before the thing taken under the will may be held to be a benefit it must appear that the beneficiary received something which otherwise he would not have been entitled to. Nothing was bestowed upon Sarah H. Campbell by the will of March 22, 1915. All was awarded to appellant, Roy C. Campbell; hence no benefit was derived. Recognizing the named executor filing inventories, accepting an estate devised by the will, but to which one is entitled in law, is not an election. McClary v. Duckworth, 57 S. W. 317, and cc.

It is claimed that the court erred in the manner of selecting the jury. On voir dire examination counsel for appellant, Roy C. Campbell, propounded to each juror, including those who finally sat at trial, the question, "Would the fact that the testator in making his will left out and did not mention and did not give anything to one or more members of his family influence you in finding a verdict in this case?" Objection was made to the question on the ground that it tended to commit the jurors in advance on a fact which it was their duty to consider in connection with other testimony in determining the testator's testamentary capacity. The court sustained the objection. Illuminative of appellant's contention, and as appears from the record, one of the jurors was searchingly examined upon the fact presented by the question, and it is fair to say that the juror ultimately maintained in effect that unless a good reason for disinheriting one child was shown it would influence his verdict. The juror was excused, but subsequently recalled, when the trial court, upon mature consideration, concluded that the situation presented no basis for challenge for cause. The juror, however, did not sit at trial. We then recur to the ruling. Was it error? We conclude it was not. We will not be expected at this time to cite authority in support of the statement that the general rule is that the utmost freedom on examination on voir dire should be permitted in order to discover any interest, bias, opinion, or other fact tending to disqualify or affect the impartiality of prospective jurors towards or concerning the controversy which they are to determine or the parties thereto, both for the purpose of challenging the juror for cause, and as an aid to the intelligent exercise of the right of peremptory challenge. Among other matters, however, that mark the limitation of the general right, is the rule invoked by appellees, which forbids any examination the purpose of which is to have the juror indicate his views on certain facts, and thereby commit him to certain views or conclusions. The question asked the jurors in the present case and excluded by the court was whether they would be influenced by the fact that the testator had disinherited some members of his family. As we have recited, the will offered by appellant for probate was claimed to be invalid because the testator was without testamentary capacity at the time of its execution. Now, it also is the general and well-established rule that in ascertaining the testator's testamentary capacity the provisions of the will on the disposition made of the estate may be considered by the jury, and, if the will discloses an unnatural, unreasonable, or injust disposition, that fact may be considered and have weight, in connection with other testimony, according to the circumstances. Prather v. McClelland, 26 S. W. 657; ...