Collins v Smith

• Citation: 53 S.W.3d 832
• Parties: <!--53 S.W.3d 832 (Tex.App.-Houston 2001) ANITA COLLINS, KATHY JACKSON, AND SHERYL SHEHANE, Appellants v. HENRIETTA SMITH, Appellee NO. 01-99-01474-CV Court of Appeals of Texas, Houston (1st Dist.)
• Decision Date: 09 August 2001
• Court: Court of Appeals of Texas

Page 832

53 S.W.3d 832 (Tex.App.-Houston [1st Dist.] 2001)

ANITA COLLINS, KATHY JACKSON, AND SHERYL SHEHANE, Appellants v HENRIETTA SMITH , Appellee

NO. 01-99-01474-CV

Court of Appeals of Texas, Houston (1st Dist.)

August 9, 2001

On Appeal from the Probate and County Court at Law No. 3 Brazoria County, Texas Trial Court Cause No. 23,034

[Copyrighted Material Omitted] Panel consists of Justices Mirabal, Jennings, and Duggan.^*

OPINION

Terry Jennings, Justice

This is an appeal involving a will contest and an action to set aside or cancel a deed. The appellants, Anita Collins, Kathy Jackson, and Sheryl Shehane, appeal the trial court's judgment in favor of appellee, Henrietta Smith. The appellants challenge the factual sufficiency of the evidence to support the jury's findings in favor of Smith on four issues: (1) testamentary intent, (2) fraudulent inducement, (3) breach of fiduciary duty, and (4) the appellants's good faith and just cause in prosecuting a previous will. We affirm.

Factual Background

William Henry Avitts, Jr., the decedent, died on July 14, 1998 at the age of 90. His wife of 67 years had predeceased him in April of 1997. The parties are all daughters of the decedent.¹ During his lifetime, the decedent had given his daughters in excess of $200,000 from a trust he funded with oil income from his property. In 1994, the decedent had executed a will devising all of his property to his daughters equally.

Shortly after his wife passed away, the decedent executed a power of attorney designating his daughter, Smith, as his agent, and he converted his checking and certificate of deposit accounts to survivorship accounts with Smith. Smith was the only daughter who had not moved off the decedent's property. The decedent had been diagnosed with prostate cancer in 1992, and his health rapidly declined after his wife's death. By February 1998, he had to wear a permanent indwelling catheter.

In April 1998, at the decedent's request, Smith faxed instructions, in her handwriting, concerning the preparation of a new will for the decedent to John Powell, an attorney. These instructions specified that, in the new will, all cash money remaining in the estate would be divided among the decedent's grandchildren and that the contents of his house would go to his five daughters. Powell prepared the will according to these instructions but never spoke with the decedent about it.

In May 1998, the decedent's urologist recommended that he see a geriatric psychiatrist because of his depressed mood. That same month, the decedent met with Dr. Gaitz, a geriatric psychiatrist, who diagnosed him with having "an adjustment disorder with depressed mood as a response to the stress of physical illness and inability to care for himself." Smith and one of her sisters accompanied the decedent on each of these doctor's appointments.

On May 21, 1998, the decedent executed a deed conveying all of his real estate, including his home, to Smith and her husband. Powell prepared the deed for the decedent at his request. The price and terms of payment for the property, consisting of approximately 26.57 acres, were not specified in the deed.

When the decedent and Smith came to Powell's office to execute the will, Powell refused to oversee the execution because he considered both the decedent and Smith to be his clients and feared a future will contest. On May 22, 1998, the decedent executed the will in front of a notary and two witnesses at another law office. The 1998 will provided inter alia that all personal property in the decedent's home, except some tables, were to be shared by his daughters, "share and share alike," and that all cash monies remaining in the estate, including all proceeds from the sale of his real property, were to be divided equally among his grandchildren. The will appointed Smith as independent executrix.

The decedent moved in with Smith at the end of May. He died on July 14, 1998 in hospice care.

Procedural Background

On August 5, 1998, Smith filed an application for probate of the May 22, 1998 will. The appellants contested admission of the 1998 will to probate on grounds of testamentary capacity, lack of testamentary intent, breach of fiduciary duty, and undue influence; they also filed an action to set aside or cancel the deed conveying the decedent's property to Smith and her husband. The appellants claimed that Smith had tortiously interfered with their inheritance rights. Additionally, the appellants sought to have the survivorship designation on the decedent's bank account and certificate of deposit set aside,² and they filed their own application to probate the decedent's November 14, 1994 will which gave all of the decedent's property to his daughters equally. The court appointed a temporary administrator, Mary Cudd, during the pendency of the will contest.³

After a five-day trial, the jury made the following findings: (1) the decedent had testamentary capacity when he executed the 1998 will; (2) neither the 1998 will nor the deed were procured by the undue influence of Smith; (3) the decedent had testamentary intent when he executed the 1998 will; (4) the decedent had mental capacity to execute the deed; (5) Smith and her husband did not fraudulently procure or induce the decedent to execute the deed; (6) Smith had a fiduciary relationship with the decedent as to the deed and the 1998 will; (7) Smith did not breach her fiduciary duty to the decedent by obtaining the deed and the 1998 will; and (8) the appellants did not prosecute the proceeding to probate decedent's 1994 will in good faith and with just cause. The jury also answered questions concerning the amount of attorney's fees expended by the parties.

The trial judge admitted the decedent's 1998 will to probate, declared the deed valid, entered a judgment holding the appellants jointly and severally liable for Smith's attorney's fees, and adjudged all costs against the appellants.

In their motion for new trial, the appellants contended the evidence was insufficient to support several of the jury's findings.

Factual Sufficiency of the Evidence

The appellants challenge the factual sufficiency of the evidence to support the jury's findings in favor of Smith on four issues: (1) testamentary intent; (2) fraudulent inducement; (3) breach of fiduciary duty; and (4) the appellants's good faith and just cause in prosecuting the 1994 will.

We will set aside a jury's finding for factual insufficiency only if, after reviewing, weighing, and considering all the evidence, the jury finding is so against the great weight and preponderance of the evidence that the verdict is manifestly unjust. See Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986) (per curiam); Miller v. Kendall, 804 S.W.2d 933, 939 (Tex. App.--Houston [1st Dist.] 1990, no writ). When undertaking a factual sufficiency review, we may not merely substitute our opinion for that of the trier of fact and determine that we would reach a different conclusion. Merckling v. Curtis, 911 S.W.2d 759, 763 (Tex. App.--Houston [1st Dist.] 1995, writ denied). The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Miller, 804 S.W.2d at 939.

Testamentary Intent

In issue one, the appellants claim the evidence was insufficient to support the jury's finding that the decedent had testamentary intent to execute the 1998 will. The appellants challenge the jury's answer to the following question:

JURY QUESTION NO. 4

Do you find from a preponderance of the evidence that William Henry Avitts, Jr., had the testamentary intent to execute the Will dated May 22, 1998?

Answer: Yes

Instruction

You are instructed that a person lacks "testamentary intent" if they [sic] do not understand the contents of the will they signed.

(Emphasis added.)

A testator is presumed to know the contents of a testamentary instrument signed by him if he: (1) is of sound mind, (2) is able to read and write, (3) has the capacity to acquire knowledge of the contents of a document by exercising his faculties, and (4) executes the instrument and has it witnessed as required by statute. Boyd v. Frost Nat'l. Bank, 196 S.W.2d 497, 507-508 (Tex. 1946); Kelly v. Settegast, 2 S.W. 870, 872-73 (Tex. 1887); Gilkey v. Allen, 617 S.W.2d 308, 311 (Tex. Civ. App.--Tyler 1981, no writ). The appellants rely on an exception to this general rule in which unexplained circumstances may cast suspicion on the issue of whether the testator knew the contents of the will. Kelly, 2 S.W. at 872-73. In such a case, the proponent of the will must then present an explanation that removes the suspicion. Id.

The appellants claim the following suspicious circumstances tainted the execution of the decedent's will: (1) the decedent was in poor health; (2) the decedent did not give the instructions on the will preparation; (3) Smith had a "deep interest" in making the will; (4) the will execution was kept secret from the beneficiaries; (5) Smith arranged for and attended the will execution; (6) the disposition of estate assets was unnatural and impossible; and (7) the decedent did not have the means to determine the contents of the will. The appellants claim Kelly's "suspicious circumstances" exception applies to this case.⁴

Even if the above circumstances cited by the appellants cast suspicion on the issue of whether the decedent knew the contents of the 1998 will at the time of its execution, Smith met her burden to present evidence removing any suspicion.

The jury heard testimony from several witnesses that the decedent was of sound mind and wanted his grandchildren to inherit his property. Edith Lanfear, the decedent's niece, visited with the decedent in July of 1998 and testified the decedent wanted to provide for his grandchildren under the will. O'Farrell, the decedent's eldest daughter, testified that the deceased wanted Smith to have his house and that one of the appellants, Sheryl Shehane...