Clark v. Briley

• Decision Date: 23 December 1916
• Docket Number: (No. 8482.)
• Citation: 193 S.W. 419
• Parties: CLARK et al. v. BRILEY et al.
• Court: Texas Court of Appeals

193 S.W. 419

CLARK et al. v. BRILEY et al.

(No. 8482.)

Court of Civil Appeals of Texas. Ft. Worth.

December 23, 1916.

On Motion for Rehearing, February 24, 1917.

Appeal from District Court, Parker County; F. O. McKinsey, Judge.

Contest of the will of Dr. G. B. Walker, deceased, between Mrs. Etta Briley and another, proponents, and Mrs. Mattie Clark and others, contestants. From an order admitting the will to probate, the contestants appeal. Reversed and remanded.

Preston Martin, of Weatherford, for appellants. Hood & Shadle, of Weatherford, and S. C. Padelford, of Cleburne, for appellees.

DUNKLIN, J.

This is a contest of the will of Dr. G. B. Walker, deceased, who died April 23, 1915. By the terms of the will Mrs. Etta Briley and Lee Walker, daughter and son of the testator, respectively, were made the sole beneficiaries and also were appointed independent executors without bond. Item 4 of the will reads as follows:

"Whereas, I have heretofore advanced to my other children moneys more than their inheritable interest in my estate, it is my will, and I so will and direct, that neither they nor their descendants shall have or take any interest in my estate."

Application for the probate of the will was filed by Mrs. Briley in the county court of Parker county, who, in addition to praying for its probate, also prayed for the issuance of letters testamentary to herself and her brother, Lee Walker. The will was contested by Mrs. Mattie Clark and Mrs. J. D. Irby, daughters of the testator. In their pleading filed in the county court, the basis for the contest consisted of allegations that, at the time of the execution of the will, the testator was laboring under a delusion, without any reasonable basis therefor in fact, that contestants were not entitled to any inheritable interest in the estate, in the absence of a will, which delusion was the result of hatred and dislike of the contestants to such an extent as to render him mentally incapable of making a valid will. Upon the hearing the county court admitted the will to probate, and from that order the contestants appealed to the district court, where it was again admitted to probate, and from that order contestants have prosecuted this appeal.

In the district court, the contestants filed an amended plea, wherein they repeated the ground for contest which had theretofore been urged in the county court, to wit, that the testator was laboring under a mental delusion at the time of executing the will which deprived him of sufficient mental capacity to make a valid will, further alleging in that connection that the delusion was brought about by undue influence exercised upon him by his son, Lee Walker, with whom he lived at the time of the execution of the will, and who entertained feelings of hostility towards contestants; that testator was then weak in mind and body, 82 years old, feeble in health, and unable to attend to business. In that pleading, additional to the ground of contest mentioned already, contestants urged as another ground that the execution of the will was induced by undue influence fraudulently exercised upon the testator by his son, Lee Walker, who entertained feelings of ill will towards contestants, and especially Mrs. Mattie Clark, and whose motive for bringing about the execution of the instrument was to gratify such feelings of ill will towards those two sisters, and also to acquire more of the estate than he would have acquired by inheritance if the deceased had died intestate.

The allegations made by the contestants for the purpose of setting aside the will were all duly denied by proponent in her supplemental petition, in which she further alleged that the will was executed several years before the death of the testator, during all of which time he was fully cognizant of its contents.

The will was executed April 20, 1903, at which time testator was 80 years of age. The testator died April 23, 1915, at the age of 92 years, and 12 years after the execution of the will. At the time the will was executed, testator owned a tract of land consisting of 320 acres, which was deeded to his wife, Rachael E. Walker, in the year 1875, but it appears to have been the community property of himself and wife. Several years prior to the execution of the will Mrs. Rachael Walker died intestate. On January 29, 1901, Walter T. Walker and Henry T. Walker, two other sons of the testator, each executed to their father a deed to all his interest in that tract of land, and in each of said deeds a consideration of $800 paid to the grantor was recited. In March, 1901, Mrs. J. D. Irby also executed a like deed to her interest in the farm to her father for a consideration of $350. The purpose of these deeds was to convey the interest inherited by the grantors from their mother, Mrs. Rachael Walker. Prior thereto there had never been any settlement by the testator with any of his children for their interest in their mother's estate.

On March 17, 1903, a little over one month prior to the date of the will, the testator instituted a suit against Mrs. Mattie Clark, then Mattie Walker, Lee Walker, and Etta Briley, for a partition of his farm, which included the 320-acre tract above referred to, in which it was alleged that the farm was of the reasonable value of $4,000, that plaintiff owned an undivided three-fourths interest therein, and that each of the defendants owned an undivided one-twelfth interest. That suit was dismissed on April 7, 1903. On April 8, 1903, Mrs. Clark executed a deed of conveyance to her father of her undivided one-twelfth interest in the farm, and all other property belonging to the community estate of her mother and father. The consideration paid to Mrs. Clark for that deed was $500. It appears that Mrs. Briley and Lee Walker were not paid anything for their interest in their mother's estate, as they agreed to permit their father to use the same as long as he lived.

By one assignment complaint is made of the rejection of the proffered testimony of Mrs. Irby to a conversation with her father during the month of March, 1901, when she executed the deed to him to her interest in her mother's estate for a consideration of $350. If permitted to do so, she would have testified that on the date referred to, she came to Mr. Kuteman's office, an attorney who had prepared the deed for her to sign and had written her to come in and execute it, and at first she refused to execute the deed; that later in the day she met her father on the street, by whom she was asked where she had been, and when witness told him that she had been to Mr. Kuteman's office, where she had refused to sign the deed, that her father put his arm around her and said:

"Emma, I want you to deed it. Come back up to Mr. Kuteman's office and sign it. You will get your part of the estate. I intend to treat all my children alike."

The witness would have testified further, if permitted to do so, that later on, just before she moved to Ft. Worth, her father had a conversation with her in which he expressed some concern with respect to her chances for a livelihood in Ft. Worth, and in that connection told her that if at any time she needed help to let him know and he would help her, and added, "What I have I intend for my children to have some day."

Complaint is made also of the exclusion of the proposed testimony of Mrs. Clark, to the effect that while she and her father were living on the 320-acre farm referred to above, and prior to the year 1898, he told her that he intended to treat all his children alike; that she would get her part of the home place down there some day; that she had been good to him and had taken care of him after his wife had died, when all the other children had left him. And on a later occasion, after her father had moved from the farm and was living with his son, Lee Walker, and after her brother, Lee Walker, had assaulted her, and while she was trying to induce her father to go back to the farm where he and she could live and keep house as they had done before moving to Lee Walker's farm, her father said to her:

"Mattie, you need not worry. You will get your part of the property."

Another assignment is addressed to the action of the court in permitting Lee Walker, named in the will as a beneficiary, to testify, over contestants' objection, as follows:

"That his father, G. B. Walker, told him, Lee Walker, that he had made a will some time during the year 1903, which was several years after the date of the will. That said G. B. Walker told him, Lee Walker, that he first thought of making a deed to his property and convey to him and his sister, Etta Briley, saying that he had settled with all of his other children; that he had paid them for their interest in the property and he wanted him and Etta Briley to have the property. And he, Lee Walker, told his father that he would rather he would not make a deed; it would not look right for him to do that; and later on his father, G. B. Walker, told him that he had made the will, and gave one half of the land to him and the other half to Mrs. Briley. That he had Judge McCall to write the will, and his father asked him, Lee Walker, to take the will and put it in the Citizens' National Bank for safe-keeping. That he was losing his eyesight, and during the year 1911, he, Lee Walker, took the will and put it in the bank, where it remained until after his death. That some time in November, 1912, his father requested him to go and get Judge McCall and have him come to see him and to bring with him one or two young men, as he wanted to talk with them about his business, saying that he had learned that Judge McCall was in bad health and might die before he, G. B. Walker, would die, and that he went and got Judge McCall and his son, Jim L. McCall, at his father's request, to come to see him at his home. That his father often talked to him about his business affairs. That his father said all the children had got...