Chambers v. Winn, 1870-7685.

• Decision Date: 16 July 1941
• Docket Number: No. 1870-7685.,1870-7685.
• Citation: 154 S.W.2d 454
• Parties: CHAMBERS et al. v. WINN et al.
• Court: Texas Supreme Court

154 S.W.2d 454

CHAMBERS et al. v. WINN et al.

No. 1870-7685.

Commission of Appeals of Texas, Section B.

July 16, 1941.

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

Suit by Florence Chambers, as an heir of J. B. Turner, in her own right and as assignee of her brother, and another against Della Winn and others to set aside a will and the probate thereof. To review a judgment of the Court of Civil Appeals, 133 S.W.2d 279, affirming a judgment of the district court in favor of the defendants, the plaintiffs bring error.

Judgments reversed and cause remanded.

Berry, Warlick & Bunnenberg, of Vernon, and Temple Yarbrough, of Bowie, for plaintiffs in error.

Donald & Donald and Benson & Benson, all of Bowie, for defendants in error.

TAYLOR, Commissioner.

This case involves a contest of the will of J. B. Turner which was probated in September, 1934, in the County Court of Montague County. Following the probate, suit was filed in the county court to set aside the will and the probate thereof on the grounds, among others, that if he made the will he was unduly influenced to do so by the defendant, Mrs. Della Winn; and that "he was not of sound memory, or in any respect capable of making a will."

Upon trial in the county court judgment was rendered denying the contest and declaring that the will had been properly admitted to probate. The cause was heard de novo in the district court and upon conclusion of the evidence a verdict was instructed by the court in favor of defendants and judgment was rendered for them accordingly. The Court of Civil Appeals affirmed the judgment. 133 S.W. 2d 279. Writ of error was granted upon the ground, generally speaking, that the evidence raised the issue of whether the testator was capable of making a will, and that the Court of Civil Appeals erred in affirming the judgment rendered upon an instructed verdict. There is no issue here under the present record with respect to the other grounds upon which the will was attacked and they need not be further referred to.

Whether there was any probative evidence of incapacity on the part of J. B. Turner to make a will is the sole question presented. Stated another way, is the evidence so conclusive that he was not lacking in mental capacity to make his will that reasonable minds would not differ upon that question? Unless it is, the trial court erred in not permitting the jury to pass upon it and the Court of Civil Appeals was in error in affirming the judgment. We are not dealing here, it will be noted, with a question of insufficiency, which is within the exclusive province of the Court of Civil Appeals, but with whether there is in the record any probative evidence upon the question presented.

The courts below failed, in the present case, to observe the distinction between evidence bearing upon the mental condition of the testator and that bearing upon his legal capacity to make a will. Brown v. Mitchell et al., 88 Tex. 350, 31 S.W. 621, 36 L.R.A. 64; Pickering v. Harris, Tex.Com.App., 23 S.W.2d 316; McCormick & Ray on Evidence, p. 806, sec. 637. The rule applicable as to the relevancy and probative character of the testimony stated in Campbell v. Campbell, Tex.Civ.App., 215 S.W. 134, 138, writ refused, and predicated upon its more general pronouncement in Brown v. Mitchell et al., supra, is as follows:

"We understand the rule to be that witnesses, whether experts or laymen, may, having first stated their observation or knowledge of the habits, conduct, expressions, peculiarities, disposition, temper, or character of the person, in turn may give their opinion as to whether he...