Daily v. Wheat

• Decision Date: 04 October 1984
• Docket Number: No. A14-82-112CV,A14-82-112CV
• Citation: Daily v. Wheat, 681 S.W.2d 747 (Tex. App. 1984)
• Parties: Bette Bettes DAILY, Deceased, Appellant, v. John V. WHEAT, et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 747

681 S.W.2d 747

Bette Bettes DAILY, Deceased, Appellant, v. John V. WHEAT, et al., Appellees.

No. A14-82-112CV.

Court of Appeals of Texas Houston (14th Dist.).

Oct. 4, 1984.

Ben H. Schleider, Jr., Carl H. Moerer, Schleider & Francis, Talmage M. Guy, Harry G. Dippel, Houston, for appellant.

Will G. Dickey; Little, Dickey & Stirman, Taylor Moore, Houston, for appellees.

Before J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.

OPINION

J. CURTISS BROWN, Chief Justice.

This is a will contest.

Ruth Bettes, the testatrix, died on June 12, 1980, in a Houston hospital at the age of 84 years. The will dated June 21, 1978, and a codicil dated March 21, 1979, were filed for probate by proponent, John V. Wheat, attorney and financial adviser of testatrix. Under the terms of the will and codicil, Mrs. Bettes left her estate as follows:

1. Specific cash bequest of $50,000 to Wheat;

2. Specific cash bequest of $40,000 to three servants;

3. Specific cash bequest of $10,000 to Grace Daily, one of the five daughters of Contestant;

4. 10% of the residual estate to the Episcopal Church;

5. 90% of the residual estate to charities selected by Wheat to be "used in perpetuity exclusively for the benefit of schools, colleges, universities, churches or other charities which are charitable organizations.

Bette Bettes Daily, testatrix's only child, filed a timely contest. Following a lengthy trial, the jury, in response to special issues, found (1) the testatrix was of sound mind when the will and codicil were executed and (2) the testatrix's will and codicil were not the result of proponent's undue influence. Contestant filed a motion for judgment n.o.v. seeking to set aside the jury findings on undue influence. Such motion was overruled and final judgment was entered on the verdict admitting the will and codicil to probate. Contestant's motion for new trial was also overruled, following which this appeal was duly perfected. Appellees are Wheat, the Protestant Episcopal Church Council of the Diocese of Texas (or Episcopal Church), and the Attorney General of Texas ¹. Appellant assigns ten points of error. She has not made our already difficult task any easier by setting forth her points in an argumentative and multifarious manner. However, we understand the thrust of her arguments, and will attempt to address the claims as submitted.

In her first three points of error, appellant contends (1) that the undisputed evidence shows as a matter of law that undue influence was exercised by Wheat upon testatrix; (2) that by reason of the fiduciary relationship existing between Wheat and testatrix a presumption of invalidity arose which was not adequately rebutted by proponent; and (3) that the jury's finding was insufficiently supported by the evidence or was against the great weight and overwhelming preponderance of the evidence.

A leading case on undue influence is Long v. Long, 133 Tex. 96, 125 S.W.2d 1034 (1939). In that case, the jury found that while testatrix possessed testamentary capacity at the time the will was signed, the will was the product of undue influence. The court of civil appeals reversed and rendered, admitting the will to probate. In addressing the question of undue influence, the supreme court stated:

It is not possible to frame a definition of undue influence which embraces all forms and phases of the term. Every case is different from every other case, and must depend largely on its own facts and circumstances. Generally speaking, undue influence is such influence or dominion as exercised at the time, under the facts and circumstances of the case, which destroys the free agency of the testator, and substitutes in the place thereof the will of another. Undue influence has also been defined as that dominion acquired by one person over the mind of another which prevents the latter from exercising his discretion, and which destroys his free agency. Also, undue influence has been defined as that which compels the testator to do that which is against his will from fear, the desire of peace, or some other feeling which he is unable to resist." 42 Tex.Jur., p. 792, Sec. 2, and authorities there cited.

Id. 125 S.W.2d at 1035.

The Court further stated:

In spite of the rule just announced, weakness of mind and body, whether produced by infirmities of age or by disease or otherwise, may be considered as a material circumstance in determining whether or not a person was in a condition to be susceptible to undue influence.

A person of sufficient mental capacity to make a will has the right to devise his property as he may see fit, so long as he transgresses no law. Also, a person in making a will rests under no legal obligation to devise his property according to the laws of descent and distribution, or according to any moral law, and the mere fact that a testator has ignored such laws is no ground for setting aside his will. In spite of this, however, the fact that a testator has left a will that is unnatural in its terms, and makes a difference between those who, according to natural law, ought to stand equal as to his property may be considered as a circumstance, along with other circumstances in determining whether or not the will was a product of undue influence."

Id. 125 S.W.2d at 1036.

The court in Long reviewed the particular evidence at hand and reached the conclusion that a fact issue was presented. Therefore, it reversed the judgment of the court of appeals and remanded the case to that court for consideration of the factual insufficiency points which had not been passed on.

In Rothermel v. Duncan, 369 S.W.2d 917 (Tex.1963), a Mrs. Duncan contested the will of Mrs. Rothermel. The jury found undue influence had been exercised upon the deceased by her son, Louis Rothermel. Based upon the jury verdict, the trial court entered judgment in favor of the contestants. The court of civil appeals affirmed. The issue before the supreme court was whether the record contained any evidence of probative value to support the jury's findings. The record revealed that upon the death of his father (Mrs. Rothermel's husband), Louis left school and assumed responsibility of providing support for his mother, sister, and brother. The sister later died. Mrs. Rothermel relied upon Louis to continue support for her until investments made by him for and in her name became sufficient to provide for her. In 1939, she executed her first will, dividing her estate equally between her boys. Some time after his brother's death, Louis took his mother to his farm in Waller County. He employed a woman named Blumenthal to care for his mother and look after his business. Mrs. Rothermel was 93 years of age and suffered from common maladies of age, such as hearing loss and poor eyesight. She also suffered from arthritis and diabetes. She was devoted to Louis and trusted him completely. She relied entirely upon him to handle all of her affairs. In 1957 or 1958, Mrs. Rothermel told Louis she wanted to make another will leaving everything to him. Louis drew the new will, and suggested to his mother that her will provide that if he predeceased her, his daughter would be executrix and the property would be divided equally among the daughter's grandchildren and great grandchildren. No attorney was consulted. On January 30, 1958, the new will was signed by Mrs. Rothermel before appropriate witnesses which were gathered by Louis. Mrs. Rothermel continued to live with Blumenthal until her death in 1958 at 94 years of age. Evidence in the record revealed that Mrs. Rothermel loved the children of both her sons equally. Disinterested witnesses heard Mrs. Rothermel declare numerous times within five years of her death that she intended to leave her estate equally to her grandchildren.

Responding to the issue of undue influence, the supreme court stated that influence is not undue unless the free agency of the testator is destroyed and a testament produced that expresses the will of the one exerting the influence. They added that while one may request or even importune and entreat another to execute a favorable dispositive instrument, unless the importunities and entreaties are so excessive as to subvert the will of the maker, they will not invalidate the instrument. The court further stated that the exertion of undue influence cannot be inferred alone from opportunity, but there must be some testimony, direct or circumstantial, to show the influence was present, and, in fact exerted. After reviewing the facts set out above, the court held that there was no evidence of such influence. See also Estate of Woods, 542 S.W.2d 845 (Tex.1976).

Turning now to the case before us, we note the following. Mrs. Bettes was 84 years old when she died. She was survived by her only child, Mrs. Daily, and her five granddaughters. For several years before her death, she lived alone in a large home in the River Oaks section of Houston. She was at one time a very wealthy woman, but she lost most of her fortune in the 1960's when the T.J. Bettes Mortgage Company collapsed. She was left with her exempt assets, including her home, her jewelry, and some stocks and bonds. Upon encountering numerous financial problems, Mrs. Bettes turned to John Wheat for assistance. Wheat had been practicing law in Houston for many years, and had done some work for the Bettes family or company since the 1950's. During this financial crisis, both Mrs. Bettes and her creditors chose Wheat to act as trustee of her assets, conveying title of the assets to him for the protection of Mrs. Bettes and her creditors. At a later date, Wheat assisted in solving a tax problem that resulted in a substantial tax refund to Mrs. Bettes. From 1970 until her death, Wheat, or someone in his employ, assisted Mrs. Bettes in paying her bills and in handling her affairs, including the preparation of her tax returns. When she became ill, she selected Wheat to exercise her power of attorney. Due to a...