Cloud v. Cloud

• Decision Date: 05 April 1940
• Docket Number: No. 14065.,14065.
• Citation: 139 S.W.2d 826
• Parties: CLOUD et al. v. CLOUD et al.
• Court: Texas Court of Appeals

139 S.W.2d 826

CLOUD et al. v. CLOUD et al.

No. 14065.

Court of Civil Appeals of Texas. Fort Worth.

April 5, 1940.

Rehearing Denied May 3, 1940.

Appeal from District Court, Young County; B. H. Atchison, Judge.

Proceeding by Mrs. Addie C. Buford, for herself and as next friend of Tate Cloud, a person of unsound mind, to set aside probate of will of Mrs. Nannie A. Cloud, opposed by J. W. Cloud and others. From a judgment on a verdict against contestants, contestants appeal.

Reversed and remanded.

Fred T. Arnold, of Graham, Guy Rogers, of Wichita Falls, and Robert Lee Guthrie, of Dallas, for appellants.

E. G. Thornton, of Olney, and Marshall & King and Penix & Penix, all of Graham, for appellees.

SPEER, Justice.

At the October, 1933, term of the County Court of Young County, Texas, the last will of Mrs. Nannie A. Cloud, deceased, was admitted to probate.

On December 30, 1938, Mrs. Addie C. Buford, for herself and as next friend of Tate Cloud, a person of unsound mind, filed in the Probate Court of Young County a petition contesting the validity of the will of Mrs. Nannie A. Cloud, and sought to have the probate proceedings had therein set aside. The grounds alleged were to the effect that the will so entered for probate was void, because it had been executed by testatrix under duress of her son, Jesse W. Cloud; that the said Jesse W. Cloud had exercised an undue influence over his mother, the testatrix, to such an extent that the will did not speak the true desires of testatrix, but was executed by her at the instance of said son, because of fear for her own safety at his hands. Allegations were made that Tate Cloud, for whom Addie C. Buford appeared as next friend, was adjudicated to be of unsound mind and had been committed to the asylum shortly after the said will was admitted to probate, and had not subsequently been mentally competent to maintain a suit for the purposes therein set out.

Jesse W. Cloud, Eula Peacock, Ernest Poer, Florence Moore and husband, J. H. Moore, David Poer, Jesse Poer, Lorena Mitchell, Faydelle Poer, Mildred Poer, George Eidson, Jimmie Fay Gleghorn and husband, Bill Gleghorn, Ida Lee Shaw, Minnie Worrell, Arlton Show, Claude Worrell, Wayne Eidson, G. W. Eidson, Inez Eidson, Irene Eidson, R. B. Tidwell and J. B. Nehls were named as defendants and alleged to be the children and grandchildren of testatrix.

Jesse W. Cloud and certain other defendants answered by general denial, special plea of limitation and of res judicata (because of the decree of the probate court at the October 1933 term, from which no appeal was taken).

Other defendants appeared and answered through their respective attorneys of record, pleading the general issue.

A jury trial was demanded and after a very elaborate definition of "undue influence" was given by the court (of which no complaint is made), a single issue was submitted, which reads: "Special Issue No. 1. Do you find from a preponderance of the evidence that Mrs. Nannie A. Cloud was induced to make and execute the will in question and the provisions thereof, by undue influence of Jesse Cloud?" The jury answered, "No."

Judgment was entered on the verdict against plaintiffs in the capacity stated, from which this appeal has been perfected. The parties will carry the same designation here as in the trial court.

Under appropriate assignments of error, the appeal is based upon three propositions. They are, in effect, (1) the court erred in admitting in evidence over plaintiffs' objections, certified copies of parts of a lunacy hearing against Addie Buford, had in Dallas County, in 1917; (2) the court erred in refusing to grant plaintiffs a new trial, upon motion therefor, when it was shown that the judgment of the court entered at said lunacy hearing was one discharging the accused; and (3) because the court erroneously permitted, over the objection of plaintiffs, a party defendant to testify concerning transactions had with testatrix in violation of Article 3716, R.C. S.

As against plaintiffs' propositions 1 and 2, defendants contend that no error is shown for the reasons, (a) there was no evidence before the court tending to raise the issue of undue influence, and therefore no issue should have been submitted, but that an instructed verdict should have been given for defendants at the conclusion of taking testimony, and (b) that more than four years had elapsed since the probate of Nannie A. Cloud's will, when the contest was filed, and that the requested peremptory instruction should have been given.

We think it proper to just here dispose of the contention that a peremptory instruction should have been given for defendants because more than four years had elapsed since the will was admitted to probate.

An action to probate a will is an action in rem; the judgment is binding on everybody until revoked or set aside. Masterson v. Harris, 107 Tex. 73, 174 S.W. 570.

By Article 5534, R.C.S., it is provided that any person interested in a will may institute proceedings to contest it at any time within four years after the will has been admitted to probate and not afterward.

By Article 5535, R.C.S., it is provided that the limitation named in the preceding article does not apply to persons who at the time the cause of action accrues is a minor, or a person of unsound mind, and other classes named. "The time of such disability shall not be deemed a portion of the time limited for the commencement of the action and such person shall have the same time after the removal of his disability that is allowed to others by the provisions of this title."

It is indisputably true that in this case some of the defendants were minors at the time the suit was filed. Those minors, along with other adult defendants, by their answer, joined plaintiffs in their prayer to the court to set aside the probate of the will. In their pleadings they asserted that they did not know the facts surrounding the execution of the will, but asked that the allegations of plaintiffs be determined by the court and if found true, that the probate be set aside.

Tate Cloud, one of the original plaintiffs, acting by his next friend, was shown to be an insane person. The record discloses that he had been twice adjudicated insane, once in 1935, and again January 27, 1938. The record of the testimony in the last hearing discloses a finding that he had been insane for five years. If it was true, as found by the jury, that he was insane five years before the hearing, then he was insane when the will was probated in 1933, and limitation would not apply to him. However, we find it unnecessary to determine his status since the contest inured to the benefit of the minors referred to.

No instructed verdict should have been returned, because the minors were entitled to prosecute the contest, and if they should succeed the will would be a nullity and its probate revoked. In such circumstances the estate would not pass under the purported will of Nannie A. Cloud, but by the law of descent and distribution. The fact that some persons other than the minors and perhaps the insane one, were barred by Article 5534, supra, would not prevent them receiving the benefit of a general judgment of the court setting aside the probate, if such one should be entered. Masterson v. Harris, supra; Buchanan v. Davis, Tex.Civ.App., 43 S.W.2d 279, affirmed by Commission of Appeals and opinion adopted by Supreme Court, 60 S.W.2d 192.

In all other respects there was ample evidence of probative force adduced upon the trial to raise the issue of undue influence. True, it was all disputed, but it is only when evidence is disputed or contradicted that an issue ever arises for submission to the jury. In City of Houston v. Chapman, 132 Tex. 443, 123 S.W.2d 652, 654, the Supreme Court approved the following statement of the law: "The evidence must be construed in the light most favorable to the party against whom the peremptory instruction was given."

Upon the trial below, defendants introduced the petition of plaintiff, Addie C. Buford, filed in an earlier contest of the will involved here, but which suit was subsequently abandoned. In that petition substantially all allegations of undue influence by Jesse Cloud upon the testatrix were made that are found in the present suit. At the time of the introduction in evidence of that petition, no limitation was put upon it for any particular purpose. It is now claimed that the only purpose for which it was introduced was in support of defendants' plea of res judicata, but no such expressed purpose appears in the record. Absent such a limitation, the document was in evidence for all purposes. Defendants are before us saying now that there was no evidence of undue influence. The petition introduced in evidence by them refutes this contention and it may be considered as a circumstance against them. Texas & N. O. R. Co. v. Patterson & Roberts et al., Tex.Civ.App., 192 S.W. 585; McClung Construction Co. v. Langford Motor Co., Tex.Civ.App., 33 S.W.2d 749; 10 R.C.L., p. 1098, § 289.

There was other evidence, if considered in its most favorable light to plaintiffs' contention, upon which a jury could have found for them. Mrs. Buford testified that defendant, Jesse Cloud, had told her that he had filed a partition suit in his mother's (testatrix) name and that he was going to handle the case; that as soon as he got that partition, his mother was going to make a will, and leave Tate (the insane plaintiff) out of it; that Mrs. Buford said maybe their mother would not make such a will and defendant, Jesse Cloud, said: "Oh, yes, she will, there isn't but one way to handle a woman and that was to tell her what to do and see that she does it." Mrs. Tyra, a sister-in-law to testatrix, but having no interest in the estate, either by inheritance or under the will, testified that she had known testatrix fifty years and had visited in her home often; that about two months before her death sh...