Cockrill v. Cox

• Decision Date: 16 March 1886
• Docket Number: Case No. 2135
• Citation: 65 Tex. 669
• Parties: M. COCKRILL ET AL. v. PARMELIA J. COX ET AL.
• Court: Texas Supreme Court

65 Tex. 669

M. COCKRILL ET AL.

v.PARMELIA J. COX ET AL.

Case No. 2135

Supreme Court of Texas.

February 2, 1886.

March 16, 1886.

APPEAL from Fayette. Tried below before the Hon. H. Teichmueller.

On June 19, 1884, S. B. Moore and M. Cockrill filed, in the county court of Fayette county, their petition for the probate of the last will and testament of Rhoda Byler, deceased, and for letters testamentary. The petition, after stating jurisdictional facts, alleged that the decedent left a large estate, real and personal, of the probable value of $35,000, and also a last will, in which petitioners were named executors, and prayed that the will be admitted to probate, and that letters testamentary be granted the petitioners. On July 5, 1884, Parmelia J. Cox, Martha Tutwiler, joined by her husband H. A. Tutwiler, and Elizabeth Hess, joined by her husband F. A. Hess, filed their protest against the probating of the will, for the reasons:

1. That, as the heirs of Rhoda Byler, deceased, they were interested in her estate.

2. That the alleged will offered for probate was not the last will and testament of Rhoda Byler, deceased, because it had not been subscribed by her and two attesting witnesses; and, because, at the time of executing the alleged will, the deceased was not of sound and disposing mind, and did not execute it, knowing or intending the disposition she was thereby making of her property.

On February 6, 1885, the county court made an order in the cause, transferring it to the district court of Fayette county, because of the disqualification of the county judge. On June 5, 1885, the cause was tried in the district court, before a jury on the demand of the contestants, and against the protest of the propounders, the court submitting to the jury, under the evidence and its charge, the following special issues:

1. Did Rhoda Byler sign the instrument in writing in question, intending it as her will, either herself, or by some other person, by her directions and in her presence?

2. Was the instrument of writing, purporting to be the will of Rhoda Byler, attested by two credible witnesses, above the age of fourteen years, subscribing their names thereto in the presence of the testatrix?

3. Was Rhoda Byler, at the time of the execution of the instrument in question, of sound mind?

The jury answered each of these issues in the negative; whereupon, the court adjudged that the instrument offered for probate was not executed in manner and form required by law to make it the will of Rhoda Byler; that she was of unsound mind at the time of its attempted execution; that the same was not the will of Rhoda Byler; that it be rejected and not admitted to probate; that propounders pay all costs, and that a copy of the judgment be certified to the county court of Fayette county for observance. From this judgment, propounders appealed.

On the trial, G. W. Tuttle, a witness, who had known Mrs. Byler, the deceased, and had had business transactions with her for a series of years, having at great length described her mental condition for several years prior to her death, and having related all of her little peculiarities, was permitted, over the objection of propounders, to state his opinion as to her mental capacity to make a will at the time she executed the one offered for probate. This was assigned as error.

The third special charge asked by the propounders, and refused by the court, the refusal of which was assigned as error, was as follows:

“As to the question of testamentary capacity, you are charged that a person whose mind is affected by old age and disease, so as to be enfeebled, and whose memory may be impaired, yet, if there is a capacity to understand and design the act, to understand the nature and character and amount of her property, to know the objects of her bounty, and to understand the provisions and intend them, then such a person is sufficiently sound of mind for the purpose of making and executing a will.”

That portion of the court's charge relating to the same issue was as follows:

“Was Rhoda Byler, at the time of the execution of the instrument in question, of sound mind? The soundness of the mind, or testamentary capacity, requisite to make a valid will, is such that the testator, when making a will, is capable of knowing and understanding the nature of the business he is engaged in, and the elements of which the will is composed, and the disposition of his property he means to dispose of by his will, and the persons to whom he means to convey it, and the manner in which it is to be distributed among them.”

The facts are sufficiently set forth in the opinion on the motion for rehearing.

Ellis & Patton, Moore, Duncan & Meerscheidt, and Phelps & Lane, for appellants, on the alleged error of the court in granting contestants a trial by jury, cited: R. S., art. 1803, chap. 3, title 37, p. 269; Bradley v. Love, 60 Tex. 476.

On other questions discussed in the opinion, they cited: 1 Redfield on Wills, p. 148, sec. 12, and note 33; R. S. 4859; Garrison v. Blanton, 48 Tex. 300-304; R. S. 1316, 1317; 1 Redfield on Wills, p. 205, sec. 18; Id. p. 228, note 58; Fowler v. Stagner, 55 Tex. 400; 1 Redfield on Wills, 4th ed., p. 100, secs. 10, 11 and note 12; 1 Redfield on Wills, 4th ed., p. 129, sec. 14; 1 Redfield on Wills, 4th ed., pp. 131, 132, secs. 17, 18, 19; Pidcock v. Potter,8 Am. Reps. 182-195; Moore v. Moore, Redfield Am. Cases 182; Coudrey v. Coudrey, Redfield Am?? Cases, 192; Duffield v. Morris, Redfield Am. Cases 210; Potts v. House, Redfield Am. Cases 262.

Robson & Rosenthenthal and Brown & Dunn, for appellees, on the right of trial by jury, cited: R. S., 1139, 1121, 2208; Munson v. Newsom, 9 Tex. 113;Moore v. Hardison, 10 Tex. 471, 472; Constitution of Tex., art. 1, sec. 15; Ib., art. 5, sec. 10; Ib., latter part of sec. 16; Davis v. Davis, 34 Tex. 15;Linney v. Pelonquin, 35 Tex. 29;Denson v. Beazley, 34 Tex. 191;Beazley v. Denson, 40 Tex. 416.

That it is competent for a witness to give his opinion as to one's mental capacity to make a will, based on the facts which enter into the formation of that opinion, they cited: Redfield on Wills, 4th ed., 137, 138, 139, 140, 141, 142; Reynolds v. Dechaumes, 24 Tex. 174;Renn v. Samos, 33 Tex. 766;Thomas v. State, 40 Tex. 64;Garrison v. Blanton, 48 Tex. 301.

On other questions discussed in the opinion, they cited: Redfield on Wills, 95, 102; Garrison v. Blanton, 48 Tex. 321, 302; Ford v. McBryde, 45 Tex. 499;Metzger v. Wendler, 35 Tex. 367;Powell v. Haley, 28 Tex. 52;Peeler v. Guilkey, 27 Tex. 355;Davis v. Roosvelt, 53 Tex. 305; G., H. & S. A. Ry. v. Delahunty, 53 Tex. 207; Berry v. Donley, 26 Tex. 736; 1 Redfield on Wills, 4th ed., 225, notes 47, 49; Redfield's Am. Cases 59-64; Stevens v. Van Cleve, 4 Wash. Ct. Rep. 662; Wood v. Chambers, 20 Tex. 247;Jones v. State, 13 Tex. 168;Howerton v. Holt, 23 Tex. 60;Blankenship v. Douglas, 26 Tex. 228;Gray v. Burk, 19 Tex. 232;Powell v. Messner, 18 Tex. 405; Duffel v. Noble, 14 Tex. 665; Redfield on Wills, 4th ed. 224; Fowler v. Stagner, 55 Tex. 400;Oliver v. Chapman, 15 Tex. 406; Redfield Am. Cases, 246, 247, 621, 631, 632, 633, 753; Jordan et als. v. Brophy, 41 Tex. 283;Bailey v. White, 13 Tex. 118;Gilliard v. Chesney, 13 Tex. 337;McFarland v. Hall, 17 Tex. 690.

ROBERTSON, ASSOCIATE JUSTICE.

All the constitutions of the Republic and State of Texas have preserved the right of trial by jury, in the same language. Const. of Republic, 9th clause of Declaration of Rights; Const. of 1845, sec. 12, art. 1; Const. of 1866, sec. 12, art. 1; Const. of 1869, sec. 12, art. 1; Const. of 1876, sec. 15, art. 1.

In the Constitution of 1845, the provision that this right should “remain inviolate,” was deemed a sufficient security of it in all cases in the district court, except causes in equity, for which a special clause was introduced. Sec. 8, art. 4.

The act of 1848 gave us our first complete system of probate jurisprudence,and, under it, the initial proceeding to probate a will was in the county court, which, as then organized, had no power to impanel a jury. Pas. Dig., art. 1261. A contest could be had in the county court, and either party could annul the result by an appeal to the district court (P. D. 1267, 1384), or a contest could be originally inaugurated in the district court, and the contest there, whether the jurisdiction was acquired by an original proceeding or by appeal, by the uniform practice, without the authorization of an express statute or other constitutional provision than those adverted to, was tried by a jury, unless the intervention of a jury was expressly waived. Parker v. Parker, 10 Tex. 85;Crain v. Crain, 21 Tex. 790;Vickory v. Hobbs, 21 Tex 571;Tynan v. Paschal, 27 Tex. 287.

The constitution of 1869 ordained that the right of trial by jury should ““remain inviolate” (sec. 12, art. 1); that, in all cases of law or equity, involving more than $10.00, the right should be preserved (sec. 16, art. 5); and that, “in the trial of all causes in the district court, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury * * * * * ” By this constitution exclusive original jurisdiction of probate matters was conferred upon the district court (sec. 7, art. 5), and, to adapt the procedure to the organic changes, the probate law of 1870 was enacted. In this law it was stated, that “there is no trial by jury in matters of probate, except when expressly provided by law.” P. D., art. 5481.

In the case of Davis v. Davis, 34 Tex. 1, construing the law and the constitution, it was held that a contest over the probate of a will, without expressly considering whether it was a case of law or equity, or the parties to it could be called plaintiff or defendant, must be tried by jury, if demanded. This construction was accepted and acted upon until the law was repealed, and the constitution of 1869 was superseded by that of 1870. Renn v. Samos, 33 Tex. 763;Denson v....