Cude v. Culberson

• Decision Date: 27 June 1947
• Citation: 209 S.W.2d 506
• Parties: CUDE et al. v. CULBERSON et al.
• Court: Tennessee Supreme Court

209 S.W.2d 506

CUDE et al. v. CULBERSON et al.

Court of Appeals of Tennessee, Western Section.

June 27, 1947.

Certiorari Denied by Supreme Court January 16, 1948.

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Appeal in error from Circuit Court, Obion County; E. A. Morris, Judge.

Will contest by David Alex. Culberson and William Edward Reece, by his father and next friend Willis Reece, opposed by James R. Cude and another, administrators with the will annexed of the estate of W. C. Culberson, deceased, and others. Judgment for contestants, and the proponents appeal in error.

Reversed with directions.

Miles & Miles and Hudgins & Hudgins, all of Union City, for plaintiffs in error.

Heathcock & Elam, of Union City, for defendants in error.

ANDERSON, Presiding Judge.

This was an issue of devisavit vel non. The alleged will purported to be that of W. C. Culberson. It was challenged on the ground of mental incapacity and undue influence exercised by the beneficiaries thereunder. The verdict was against the will, and judgment was entered accordingly. The proponents appealed in error.

The testator was a farmer living near Troy, in Obion County, Tennessee. He died in February, 1946, at the age of 76, leaving an estate consisting of farm lands and personal property of the value of some $55,000.00 to $60,000.00. He was survived by his wife, two daughters, Mrs. Maud Cude and Mrs. Mary Cude, one son, D. A. Culberson, referred to in the record as Alex. Culberson, and one grandson, William Edward Reece, a minor about ten years of age. The latter is the son of a daughter who predeceased the testator. Her given name was Willie B. She intermarried with Willis Reece. She died April 3, 1936, survived by her husband and the one child. The contestants are the testator's son, Alex. Culberson, and the minor grandchild, William Edward Reece acting by his father and next friend, Willis Reece. The proponents are James R. Cude and A. C. Cude, who qualified as administrators with the will annexed, and who are the husbands of the testator's two daughters. The latter and the widow likewise joined as proponents.

The alleged will, as originally executed, bears date of February 12, 1930. There are two codicils, the first dated July 18, 1936, and the second, May 8, 1945.

By the will as originally published, the testator gave to his wife for life the farm on which they then lived, with the remainder to his three daughters equally. In addition, he gave her $3000.00 in cash, the household goods, live stock and farming implements. All other property he gave to the three daughters. The document also contains the following: "I desire to make this statement, that I have not given my son D. A. Culberson any property under this will for the reason that I have heretofore given him 280 acres of land which in my judgment will make him equal with the others. And it has been my purpose to make my children equal".

The first codicil dated July 18, 1936, after referring to the fact that the daughter, Willie B. Reece, had died since the original will was executed, provides that the one-third interest given to her should go to the other two daughters, Mrs. Mary Cude and Mrs. Maud Cude, share and share alike.

Insofar as is material, the second codicil dated May 8, 1945, after referring to the fact that the farm given to the wife for life with remainder to the daughters had been sold, provides that in lieu thereof the widow should have "my present home place of about 345½ acres for life, with remainder over at my death to my daughters, Mrs. Maud E. Cude and Mary Cude, in equal shares or moities".

The contest arose from the fact that the will made no provision for the son, Alex. Culberson, and the grandson, William Edward Reece.

The proponents have assigned 31 errors. The first question to be dealt with is whether their motion for a directed verdict sustaining the will should have been granted. This depends upon whether, considered in the light most favorable to the contestants the evidence was sufficient to support the verdict. The Nature and extent of the discussion in the brief as to what the law required in this connection calls for a response somewhat more detailed than is usual in this connection.

Although it is commonly referred to as a will contest, the trial of an issue of devisavit vel non in the circuit court is an original proceeding to probate a will. Jones v. Witherspoon, 182 Tenn. 498, 187 S.W.2d 788. In that case Mr. Justice Gailor, for the Court, demonstrates that the form of action is sui generis, strictly in rem, and derived not from the common law but from the ecclesiastical courts of England. And in Hager v. Hager, 13 Tenn. App. 23, 27 (certiorari denied by the Supreme Court), it is said: "Will contests at the hands of juries were unknown to the common law and in a great many states these controversies are tried by the court". See also, Page on Wills, Vol. 2, 214, sec. 643; 31 Am.Jur. 565; 28 R. C. L. 404; Note 62 A.L.R. 78. But whether by reason of the fact that they were not so triable at common law, such cases are excluded from the constitutional guaranty of trial by jury and thus from the restrictions thereby imposed upon the power of the judge with respect to disputed issues of fact (Hunt v. Hunt, 169 Tenn. 1, 80 S.W.2d 666), it is not within our province to decide and it would be unnecessary to do so in any event. This, because such a trial is provided for by Code, Section 8107, and we apprehend that under that statutory provision the authority of the trial judge or the appellate court to direct a verdict is the same as it is in those cases within the purview of the constitutional provision.

This rule is that there can be no exercise of the power to direct a verdict in any case where there is a dispute as to any material evidence, or any legal doubt as to the conclusion to be drawn from the whole evidence, upon the issue to be tried. Tyrus v. Kansas City, Ft. S. & M. R. Co., 114 Tenn. 579, 86 S.W. 1074. Elucidating this statement, the court, in Brenizer v. Nashville, C. & St. L. Ry., 156 Tenn. 479, 484, 3 S.W. 2d 1053, 1054, 8 S.W.2d 1099, said: "This is sometimes called the `scintilla rule,' but perhaps inaccurately. More than a `scintilla' is requisite. As well said in Louisville & N. R. Co. v. Johnson, 161 Ky. 824, 171 S.W. 847: `The word "scintilla," however, as applied in our practice, does not mean that the case should be submitted to the jury when there is merely a "spark" or "glimmer" of evidence.' It means that, when there is some evidence of a material or substantial nature to support the plaintiff's case, the court will not undertake to determine its comparative value or weight but will leave the determination of the conflict to the jury". See Tenn. Cartage Co. v. Pharr, 184 Tenn. 414, 199 S.W.2d 119.

"By material evidence", says our Supreme Court, "is meant evidence material to the question in controversy, which must necessarily enter into the consideration of the controversy and by itself, or in connection with the other evidence, be determinative of the case". Knoxville Traction Co. v. Brown, 115 Tenn. 323, 331, 89 S.W. 319, 321. A conflict "upon a detached or separate feature or fact", it continues, "even though it is material, should not of itself prevent the giving of peremptory instructions. Facts are frequently material which are by no means determinative; and facts are frequently material in themselves, but become immaterial when taken in connection with other facts." Ibid.

By "substantial evidence" is meant "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion". Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 217, 83 L.Ed. 126, 127, 140, per Chief Justice Hughes; Tenn. Cartage Co. v. Pharr, 184 Tenn. 414, 199 S.W.2d 119; see also, Fitch v. Am. Trust Co., 4 Tenn.App. 87, 94; Farmers Union Bank v. Johnson, 27 Tenn.App. 342, 355, 181 S.W.2d 369.

With respect to relevancy, Dean Wigmore in his classic treatise on evidence, says that the general and broad requirement is "that the claimed hypothesis from the offered fact must be a probable or more probable hypothesis with reference to the possibility of other hypotheses." Wigmore on Ev., 2d Ed., vol. 1, sec. 38.

In this connection it must be borne in mind that testimony is not necessarily evidence within the meaning of the rule we are considering. Evidence inherently lacking in relevancy or probative quality acquires no new virtue merely because it is introduced. Jones v. Tenn. Cent. Ry. Co., 8 Tenn.App. 183, 193; 32 C.J.S., Evidence, § 1034.

With the tacit approval of our Supreme Court, this Court has said: "The mere dogmatic assertion which does not appeal to the reason of the court, which does not have substantial and relevant consequence, which does not have fitness to induce conviction, is not proof even if uncontradicted, and does not interfere with the duty of the court to direct a verdict". Fitch v. American Trust Co., 4 Tenn.App. 87, 94, per DeWitt Judge.

But to warrant rejection under this rule the evidence must be either inherently self-contradictory, or irreconcilable with facts of which the court takes judicial knowledge, or inconsistent with undisputed physical facts or laws. Southern R. Co. v. Hutson, 170 Tenn. 5, 7, 91 S.W.2d 290; Duling v. Burnett, 22 Tenn. App. 522, 530, 124 S.W.2d 294.

Testimony cannot be rejected merely because the fact it tends to show is highly improbable. Mack v. Const. Co., 10 Tenn.App. 402, 403, 411.

Whether, under these rules testimony rises to the dignity of evidence is a question of law for the court. Thus, in the well-reasoned case of Thoe v. Chicago, M. & St. P. R. Co., 181 Wis. 456, 195 N.W. 407, 408, 29 A.L.R. 1280, it is said: "The plaintiff in an action is not entitled to recover, merely because he introduces testimony or evidence upon the trial. In order to entitle him to recover, ...