Craycroft v. Crawford

• Decision Date: 09 June 1926
• Docket Number: (No. 809-4472.)
• Citation: 285 S.W. 275
• Parties: CRAYCROFT et al. v. CRAWFORD et al.
• Court: Texas Supreme Court

285 S.W. 275

CRAYCROFT et al. v.CRAWFORD et al.

(No. 809-4472.)

Commission of Appeals of Texas, Section A.

June 9, 1926.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Proceeding by Lucy Craycroft and others against Kate Lamar Crawford and another to vacate probate of will.The Court of Civil Appeals(275 S. W. 124) affirmed a judgment for contestees, and contestants bring error.Reversed and remanded.

Locke & Locke, of Dallas, for plaintiffs in error.

Coke & Coke, Smith, Robertson & Robertson, and Etheridge, McCormick & Bromberg, all of Dallas, for defendants in error.

NICKELS, J.

A paper of date November 1, 1897, and of purported holographic text, was probated as the last will and testament of Colonel William L. Crawford.Devise and bequest of his entire estate to his second wife, Mrs. Kate Lamer Crawford, was thereby evidenced, and no reference to the children of a former marriage or to the child of the second marriage was made therein.The children of the first marriage seasonably instituted proceedings for vacation of the probate and voidance of the will.Trial in the probate court resulted adversely, and these children duly prayed appeal to the district court.

Asserted invalidity rests upon these charges: (a) The instrument, which was not found amongst the papers of the deceased, but which was "procured from * * * the private lock box of the defendant"(the second wife), "to which Colonel William L. Crawford did not have access," was not "in fact his will and testament."(b)"If the same was executed by the said Colonel William L. Crawford, the defendant"(second wife)"procured such execution by means of undue influence exerted by her over the said Colonel William L. Crawford."The basic charges are given detailed support in the averments.Upon the trial in the district court, voluminous testimony and documentary evidence were introduced by the contestants, and a considerable volume of documentary evidence was introduced by the contestees.At conclusion of the evidence a peremptory instruction for a verdict in favor of the contestees was given to the jury.Verdict was returned thereon and the appropriate judgment entered.Upon appeal of contestants the judgment was affirmed by the honorable Court of Civil Appeals, Fifth District(275 S. W. 124).

Upon the trial certain testimony of Willis Evans offered by the contestants was excluded.The Court of Civil Appeals held that this evidence should have been admitted; to that conclusion we agree, and hereinafter consider the testimony in respect to its probative force.

The determinative question, of course, is the sufficiency or not of proof to raise an issue of fact upon the charge that the will (if executed at all or other than manually by the testator) is a product of undue influence exerted by the second wife.Credibility of the witnesses and measure of weight to be given their testimony is beyond our jurisdiction; the evidence to the extent that it tends to establish the charge made, for present purposes, imports verity.The fact that the opinion of the honorable Court of Civil Appeals, in the main, has reference to intermediate and ultimate conclusions of fact rather than to the evidence itself makes necessary a somewhat extended discussion of the record and of the principles of law relevant thereunto.

1.Wherever sinister conduct becomes justiciable, motive is a relevant inquiry; when proven it is a circumstance with relation to the truth or falsity of the charge, e. g.: In a prosecution for murder.Undue influence as the basis of an attack upon a will is not an exception to the rule.Kennedy v. Upshaw, 64 Tex. 411;In re Arnold's Estate, 147 Cal. 583, 82 P. 252.

Prior to 1896, the sole beneficiary of the will was the wife of Lamar, who resided in Washington, D. C.She came to Dallas, and, in 1896, through Colonel Crawford and his brother as attorneys, instituted divorce proceedings against Lamar.The divorce was granted September 16, 1896, and on October 1, 1896, she and Colonel Crawford were married.A son was born to them August 8, 1897.They had no other children.According to the testimony, at an unnamed date (but apparently within a short time after the marriage)she stated to Mrs. M. L. Crawford(a sister-in-law) that "she had been advised by friends in Washington to leave her husband and come to Dallas and catch Colonel Crawford."That witness testified also that "she had a conversation with me regarding the expectant birth" of the son; "she wanted to know what she would be entitled to should she become Colonel Crawford's widow;""she thought it proper to have one child, but insisted that there should never be another; she said that she expected to have one child for the purpose of obtaining an inheritance — a mother's and a wife's inheritance."

And, as stated by the Court of Civil Appeals:

"The record further reflects the fact that Mrs. Crawford desired testator to make the character of will that he executed, as shown by repeated expressions of such desire in conversations with her sister-in-law, Mrs. M. L. Crawford."

There are (as will be seen) other facts and circumstances related by the witnesses which might be taken in corroboration and elaboration of those just detailed, but the testimony stated might be taken by the jury as sufficiently indicating motive and purpose.

2.Opportunity, of course, has relevancy.40 Cyc. 1163, and cases there cited.However slight may be the probative force of mere opportunity, its effect is increased accordingly as the proof may show exclusiveness of intimate contact and availability of means to make the opportunity effectual.

Tom Angus(who, at the time, conducted a livery establishment) said (he was)"very intimately acquainted with" Colonel Crawford "for a number of years.""Prior to his marriage with Mrs. Lamar, the Colonel never was a frequent rider in carriages, but I have driven him several times at night — I drove him on different occasions to the vicinity of Mrs. Lamar's house.""I have never driven him to Mrs. Lamar's house so full of liquor that he could not and did not take care of himself, but it was plain he was under the influence of liquor.""His visits to Mrs. Lamar's house extended over a period of several months prior to their marriage.""Colonel Crawford would get on a spree sometimes for a week, and I would take care of him — these occurrences were before his marriage to Mrs. Lamar and afterwards also.""I recall another occasion after Colonel Crawford and Mrs. Lamar married that he got so full that he went about my place undressed with an umbrella over him.""I think that after his marriage with Mrs. Lamar that he did a little better in respect to his habits of sobriety, but he was bad enough."

According to Mrs. M. L. Crawford, the wife stated that she"herself was quite cordial in everything that cordiality could give and that she indulged him, that she made his visits perfectly comfortable and agreeable, and that she provided him with liquor, and mint juleps — always had a nice, iced mint julep ready for him setting by the chair that he was to occupy."This statement referred to the period immediately preceding the marriage.

Willis Evans(coachman and body servant for Colonel Crawford during the "summer of 1896 and after") said that both before and after the marriage he drove Colonel Crawford to Mrs. Lamar's house once or twice a week; Colonel Crawford would be alone on these occasions; that sometimes he would wait for Colonel Crawford to take him away from the house and sometimes, upon Colonel Crawford's instructions, he would go home and put up the team and not wait for him; that on the occasions when he would wait for Colonel Crawford he would know when the Colonel was ready to leave by the opening of the door allowing the lights to shine on "the board fence"; and that whenever he saw this light he would come for the Colonel; that sometimes Colonel Crawford would leave "about 10 o'clock" — "sometimes later"; that "on two occasions he"(Colonel Crawford)"was late, one of them the chickens were crowing, and I guessed it was before day, and the other one was between midnight and day"; on the two occasions just referred to, he would go "to the porch" for Colonel Crawford — the Colonel had taken just a little too much on those two occasions" and "it was necessary" for Evans "to assist" Colonel Crawford — on the two occasions referred to, he saw Mrs. Lamar, and she assisted Colonel Crawford to the carriage on one of them, and on this occasion she said to Evans, "Willis, take good care of the Colonel; he is all I have got, and what he has got is all I have got"; and she"had on a loose wrapper, just a house dress like they wear, * * * those loose wrappers"; that when he referred to Colonel Crawford having "taken a little too much"he meant that he was drunk.

A "wedding" trip to Mexico City was begun on the day of the marriage.Upon return to Dallas, Colonel Crawford changed his residence from the house of his brother(where also resided his aged mother) to the house then (and thereafter) occupied by his wife.Thereafter the household consisted of Colonel Crawford, his wife and her son by Lamar and the boy born August 8, 1897.

The will purports to have been executed November 1, 1897.It is without "subscribing witnesses" and of holographic text.So far as the record shows, Colonel Crawford or his wife did not, at any time or to any one, mention the fact that he had executed a will.It was not found amongst his papers, but, two days after his death, was taken by his wife from a lock box in the vaults of the American Exchange National Bank which was rented in her name and to which Colonel Crawford did not have access.The facts and circumstances just indicated are sufficient to present for consideration by the jury the condition of "opportunity."

3."Mental condition" of the testator, as a fact or circumstance, is of a kind with "opportunity"...