Croucher v. Croucher

• Decision Date: 02 November 1983
• Docket Number: No. C-1855,C-1855
• Citation: 660 S.W.2d 55
• Parties: James W. CROUCHER, Jr. et al., Petitioners, v. Virginia M. CROUCHER, Respondent.
• Court: Texas Supreme Court

Page 55

660 S.W.2d 55

James W. CROUCHER, Jr. et al., Petitioners, v. Virginia M. CROUCHER, Respondent.

No. C-1855.

Supreme Court of Texas.

Nov. 2, 1983.

Rehearing Denied Dec. 14, 1983.

Ken Powell, El Paso, for petitioners.

James T. Allen, El Paso, for respondent.

SPEARS, Justice.

This case involves a will contest. James Croucher Sr. died in 1980, leaving a self-proving will devising his entire estate to his wife, respondent Virginia Croucher. Petitioners James Croucher Jr. and Kenneth Croucher, Mr. Croucher's sons by a previous marriage, contested the will, alleging that their father did not have testamentary capacity. Based on a jury finding that Mr. Croucher lacked such capacity, the trial court rendered judgment that the will be denied probate. The Court of Appeals reversed, holding that the evidence established as a matter of law that Mr. Croucher had testamentary capacity. We reverse the judgment of the Court of Appeals and affirm that of the trial court.

The evidence shows that Mr. Croucher had a history of physical problems, many of which stemmed from his being diabetic. In December 1979, he was admitted to the hospital to have two toes amputated. A brain scan done at that time indicated that Mr. Croucher had a diminished flow of blood to the brain in the right carotid artery. Another brain scan done shortly thereafter showed diminished flow in the corresponding left artery. In late January 1980, Mr. Croucher returned to the hospital to have his left leg amputated. He was readmitted in early March, and an arteriogram revealed that Mr. Croucher's right internal carotid artery was totally occluded. The report from a neurological examination done on that occasion recited that Mr. Croucher's "memory was sketchy and he seemed at times confused."

Mr. Croucher executed the will in question on July 7, 1980. Slightly over a month later, on August 12, he was admitted to the hospital once again. The evidence indicates that Mr. Croucher had suffered a stroke affecting his speech and memory. The hospital admission report stated that Mr. Croucher was suffering from "severe arteriosclerotic cardiovascular disease," and had been undergoing decreasing mental status for one month. Mr. Croucher died on August 17.

The record also contains evidence that Mr. Croucher had testamentary capacity on the date the will was executed. The attesting witnesses stated at trial that Mr. Croucher was lucid and knew what he was doing. Several persons who saw Mr. Croucher at a Fourth of July party, three days before the will was executed, testified that he was alert, was able to carry on a conversation, and participated in a card game. An acquaintance of Mr. Croucher who was also a medical doctor testified that he had seen Mr. Croucher around the same time, that he believed him to be competent, and that the blockage in the carotid arteries would not necessarily cause mental decline.

Against this background, the question is whether Mrs. Croucher established as a matter of law that her husband had testamentary capacity on July 7, 1980. The burden of proving capacity was on Mrs. Croucher. Siegler v. Siegler, 391 S.W.2d 403 (Tex.1965.) The fact that the will was self-proved does not shift the burden, because the contest was filed before the will was admitted to probate. Reynolds v. Park, 485 S.W.2d 807 (Tex.Civ.App.--Amarillo 1972, writ ref'd n.r.e.); see also In re Price's Estate, 375 S.W.2d 900, 903 (Tex.1964). Hence, we must sustain the jury's finding that Mr. Croucher did not have testamentary capacity unless Mrs. Croucher conclusively proved that he did. See W.H. Hodges & Co. v. Donley County State Bank, 407 S.W.2d 221, 223 (Tex.1966).

Mrs. Croucher clearly produced sufficient evidence to sustain a finding that Mr. Croucher had testamentary capacity. That evidence, if not contradicted, would be enough to establish the matter conclusively. We must determine, then, if James and Kenneth Croucher produced some evidence that their father was not competent to make a will.

There is no direct evidence that Mr. Croucher lacked testamentary capacity on the day that he executed the will. Evidence of incompetency at other times can be used to establish incompetency on the day the will was executed if it "demonstrates that the condition persists and 'has some probability of being the same condition which obtained at the time of the will's making.' " Lee v. Lee, 424 S.W.2d 609 (Tex.1968) (quoting 1 McCormick and Ray, Texas Law of Evidence § 896, at 675 [2d ed. 1956] ).

Thus, the evidence adduced by the Croucher sons must pass two tests. First, was the evidence of the kind that would indicate lack of testamentary capacity? Second, if so, was that evidence probative of Mr. Croucher's capacity, or lack thereof, on July 7, 1980, when the...