Collins v. Collins, 14936

• Decision Date: 24 February 1971
• Docket Number: No. 14936,14936
• Citation: 464 S.W.2d 910
• Parties: Mrs. Isaac Clarence COLLINS, Jr., et al., Appellants, v. D. C. COLLINS et al., Appellees.
• Court: Texas Court of Appeals

Page 910

464 S.W.2d 910

Mrs. Isaac Clarence COLLINS, Jr., et al., Appellants, v. D. C. COLLINS et al., Appellees.

No. 14936.

Court of Civil Appeals of Texas,

San Antonio.

Feb. 24, 1971.

Rehearing Denied March 31, 1971.

A. W. Worthy, Boyle, Wheeler, Gresham, Davis & Gregory, San Antonio, for appellants.

Pat Maloney, San Antonio, for appellees.

BARROW, Chief Justice.

A will contest. Appellants, Mrs. Isaac Clarence Collins, Jr., Maude Smith, and Elsie Joshua, three devisees of an instrument dated February 9, 1967, executed by deceased, Isaac Clarence Collins, Jr., seek, by petition for writ of error, to review a judgment of the district court entered on a jury verdict denying probate of such instrument as the last will and testament of testator.

Appellees, D. C. Collins and Bettye Collins Childs Allen, an illegitimate son and adopted daughter of testator, who are hereinafter referred to as contestants, have filed a motion to dismiss such petition for want of jurisdiction and urge that appellants participated in the trial of the case through Gene Toscano, Esq., their attorney, and therefore are not entitled to file a writ of error. See Article 2249a, Vernon's Annotated Civil Statutes. ¹ In considering this motion, it is necessary to review the pertinent procedural background of this matter.

On December 23, 1968, Willie Mae Duncan, hereinafter referred to as proponent, filed application, as independent executrix, to probate the instrument. Clarence McGowan, Esq. prepared and filed such application as attorney for proponent. A contest was duly filed by contestants, wherein it was urged that testator did not have testamentary capacity at the time such instrument was executed, and that same was the product of undue influence. Such instrument devised $1.00 to each of contestants and substantial specific bequests to the surviving widow, whom he had married on June 3, 1965, after the death of his first wife on September 21, 1964. All the rest and residue of his estate was devised to testator's four sisters, namely: Maude Smith, Elsie Joshua, Nettie Harris, and Willie Mae Duncan. Attorney McGowan had a written contract of employment with proponent and employed Attorney Toscano to assist him as authorized by said contract.

Only Mrs. Duncan as proponent and contestants were named as parties in either the probate or district court proceedings. The judgment of the district court as well as the statement of facts in the district court both reflect that only these three persons appeared and participated in the trial. Mrs. Harris died just prior to the district court trial. Under the uncontradicted evidence, Mrs . Smith broke her hip about two weeks before such trial, and was bed ridden at home during the trial. However, both Mrs. Collins and Mrs . Joshua were physicially present during the trial of the case in the district court. A statement filed herein by the trial judge states that he was assured by Attorney Toscano before starting the case that Toscano actually represented all five of the major devisees, and they were all present and ready to proceed. This representation was made in chambers and was not made a part of the record as required by Rule 11, Texas Rules of Civil Procedure. Unquestionably, the full sympathies as well as the legal positions of Mrs. Collins and Mrs. Joshua were allied with the proponent, although there is no showing that either had employed Mr. Toscano or Mr. McGowan. The attorney who now represents the three appellants filed and urged a motion for new trial on behalf of proponent, but did not perfect her appeal.

A very similar question was raised in Specia v. Specia, 292 S.W.2d 818 (Tex.Civ.App.--San Antonio 1956, writ ref'd n.r.e.). The executor did not perfect his appeal, but a beneficiary under the will timely filed his petition for writ of error. The question was raised as to whether he had participated in the trial so as to bar his review by writ of error. It was there held that such beneficiary under the will had not participated in the trial where he had filed no pleadings, although he had complete knowledge of the suit and in fact, had sat in the courtroom during all of the trial. See also Robertson v. Blackwell Zinc Company, Inc., 390 S.W.2d 472 (Tex.1965); Cooper v. Liverman, 406 S.W.2d 927 (Tex.Civ.App.--Texarkana 1966, no writ).

We conclude that appellants did not participate in the trial of the case and are entitled to review this judgment by the petition for writ of error which was timely filed herein. It is settled that, where available, writ of error affords a review of the same scope as an appeal. Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.1965); Appeal and Error--Civil, 3 Tex.Jur.2d, Section 11; Appellate Procedure in Texas, Section 5.1 (1964). Any error in the judgment must be disclosed by the papers on file. Mullen v. Roberts, 423 S.W .2d 576 (Tex.1968); McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961).

Appellants urge eighteen assignments of error. Twelve points complain of the improper admission or exclusion of evidence. Three assert that there is no evidence or, in the alternative, insufficient evidence to support the findings of undue influence or lack of testamentary capacity. ² One point urges that D. C. Collins was not a proper party, and that the trial court erred in overruling the motion in limine to strike him as a party. One point complains that appellants were prejudiced by the submission of Question Number 4 inquiring as to whether testator signed the instrument before the witnesses. The final point urges that if we find that appellants participated in the trial, the court erred in not granting their motion for judgment nunc pro tunc to so reflect.

Testator died on December 13, 1968, at the age of 73 years. At the time of his death, and for many years prior thereto, he had owned and successfully operated, at least nominally, a funeral home in San Antonio. In June of 1964, he was charged by information in the U.S. District Court with income tax evasion for the years 1957 and 1958. Although he pleaded guilty to such charge on June 25, 1964, the charge was subsequently dismissed on January 25, 1966, on motion of the United States Attorney after two psychiatric examinations at Wilford Hall U.S. Air Force Hospital, as shown by reports of the examining doctor dated August 14, 1964, and November 30, 1965.

Appellants' first point complains of the admission into evidence of Contestants' Ex. N, being a certified copy of the order of dismissal and certain documents attached thereto; namely a letter from the Chief, Criminal Section of the Department of Justice, to the District Attorney for the Western District and two letters from Martin B. Giffen, Colonel, USAF, MC, setting forth his reports based on said examinations including Colonel Giffen's diagnosis and conclusions. The second point relates to contestants' Ex. F, which contains testator's medical file at Wilford Hall Hospital. In this connection, appellants concede that the reports of tests made at the hospital were admissible, but complain of other matters in the hospital file, such as copies of the foregoing reports of Dr. Giffen, a letter from the U.S. Attorney setting forth a history of the case, a copy of the information against testator, a copy of the order for examination as well as statements as to the alleged prior medical history of the deceased. Appellants' third point complains of repeated statements by contestants' attorney during examination of various witnesses that testator had been indicted in the Federal Court for income tax evasion, and the charge dismissed after he was found mentally incompetent.

Much of this evidence would have been improper if timely objection had been raised thereto. In Loper v. Andrews, 404 S.W.2d 300 (Tex.1966), the Supreme Court construed Article 3737e, V.A.C.S., as permitting the admission of the diagnosis or medical opinion of a doctor, contained in a proper hospital record, only where the diagnosis Records a condition resting in reasonable medical certainty. It cannot be said that an opinion relating to mental incompetency would meet such a test. Furthermore, we can see no basis for admitting the correspondence between the attorneys in the Department of Justice, which includes an erroneous assumption that there had been a 'Court's finding that this 68 year old defendant is mentally incompetent; * * *.'

We cannot say, however, that error has been properly preserved. Proponent filed her ...