Curtis v. Adams

• Decision Date: 11 June 1925
• Docket Number: (No. 3099.)
• Citation: 275 S.W. 206
• Parties: CURTIS v. ADAMS et al.
• Court: Texas Court of Appeals

275 S.W. 206

CURTIS v. ADAMS et al.

(No. 3099.)

Court of Civil Appeals of Texas. Texarkana.

June 11, 1925.

Appeal from District Court, Grayson County; Silas Hare, Judge.

Suit by Estelle Adams and another against Parthena M. Curtis. Judgment of county court sustaining will of W. J. Curtis, deceased, was reversed on retrial in district court, and defendant appeals. Reversed and remanded.

Webb & Webb, of Sherman, for appellant.

J. S. Kone, of Sherman, and McLean, Scott & Sayers, of Fort Worth, for appellees.

HODGES, J.

In July, 1917, W. J. Curtis, husband of the appellant, died, leaving a will, in which he bequeathed all of his property to his wife, the appellant in this suit. The will was probated without objection in September of the same year. In June, 1921, two months less than four years after the will was probated, a suit was filed by the appellee Estelle Adams, joined by her husband, to set aside the probate order. In the petition filed in the county court two grounds were alleged — mental incapacity of the testator, and undue influence by Mrs. Curtis. A trial in the county court resulted in a judgment sustaining the will. The case was appealed to the district court, where, in a trial before a jury, a judgment was rendered setting aside the probate order and canceling the will. In the district court the original petition was amended by adding averments of undue influence by A. M. Curtis, then deceased. The appellant excepted to that part of the amended petition, first, because it contained a ground of annulment of the will not pleaded in the county court, and for that reason the district court had no jurisdiction, and, second, because that averment was made more than four years after the original probate of the will. These exceptions were overruled, and that ruling is complained of in this appeal. In the trial the only issue submitted to the jury was that of mental incapacity.

During the trial Dr. S. C. Millan, a witness for the contestants, was asked the following question: "Did he (W. J. Curtis) have mental capacity, mental soundness, to understand a business transaction, to carry on a business transaction?" To which the appellant objected because it called for a conclusion of the witness on a matter that was exclusively within the province of the jury. The court overruled the objection, and the witness answered: "No, sir; in my opinion he did not."

In the trial of cases of this character it is permissible for a witness, who is qualified, to state whether in his opinion the mind of the testator is sound or unsound; but he cannot give his opinion as to the mental capacity of the testator to perform the act then under investigation. In Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64, the Supreme Court used this language:

"No witness, whether he be a subscribing witness, an expert, or a nonexpert, will be permitted, over proper objection, to state his opinion of the capacity of the testator, or the maker of any contract, to make such instrument, when such opinion assumes the shape and has the effect of being an opinion upon the legal capacity of the party in question."

In the same opinion the court quoted with approval the following:

"The question, we think, was properly excluded. It asked for the doctor's opinion of the mental capacity of the testator some two or three months before he made his will. Mental capacity for what? To make a will, for that was in issue. ...