Dannenbauer v. Messerer's Estate

• Citation: 4 S.W.2d 620
• Decision Date: 08 March 1928
• Docket Number: (No. 3508.)
• Parties: DANNENBAUER v. MESSERER'S ESTATE et al.
• Court: Texas Court of Appeals

4 S.W.2d 620

DANNENBAUER v. MESSERER'S ESTATE et al.

(No. 3508.)

Court of Civil Appeals of Texas. Texarkana.

March 8, 1928.

Rehearing Denied March 29, 1928.

Appeal from District Court, Fannin County; George P. Blackburn, Judge.

In the matter of the estate of Fritz Messerer, deceased. Will contest by Mrs. Mary Compton and others, opposed by Mrs. Margaret Dannenbauer, proponent. From a judgment of the county court admitting the will to probate, contestants appealed to the district court. The district court entered judgment refusing to probate the will, and proponent appeals. Reversed and remanded.

Cunningham & Lipscomb, of Bonham, for appellant.

Beauchamp & Lawrence, of Paris, and J. I. Warren, of Honey Grove, for appellees.

HODGES, J.

This appeal is from a judgment in the district court of Fannin county refusing to probate the will of Fritz Messerer. The will was dated November 29, 1897, and was executed in compliance with the forms required by the statute. By its terms the will devised all of the testator's property, after the payment of his debts, to his sister Mrs. Margaret Dannenbauer. Messerer died on the 25th day of January, 1927, leaving an estate valued at more than $200,000. His only heirs were two sisters, one brother, and the children of one or more deceased sisters. When the will was presented in the county court for probate it was contested by Mrs. Mary Compton, a sister of the testator, and the children of a deceased sister. The grounds of the contest were undue influence and revocation, which will be more fully stated hereinafter. From a judgment of the county court admitting the will to probate the contestants appealed to the district court.

The following is, in substance, a part of the family history of the testator and the parties to this suit: Fritz Messerer was born in Germany, and came to America in 1882. A few years later he was followed by his two sisters, who are parties to this suit, and a brother. He was never married, and lived with other members of the family. About 1897 his sister Mary, now Mrs. Compton, married a native American. This marriage seemed to offend her brother Fritz, and shortly thereafter he made the will which is now being contested, leaving all of his property to his sister Margaret, Mrs. Dannenbauer. However, in course of time he became reconciled to his sister Mary, and showed evidences of affection for her and her children and friendship for her husband. There was testimony tending to show that he made other wills before he died which either expressly or impliedly revoked the will of 1897. The last of those wills, it is contended, gave some of the property to his sister Mary, one of the contestants. The contestants pleaded that the resentment of Messerer towards his sister Mary because of her marriage was aggravated and intensified by the proponent, Margaret Dannenbauer, who, it is claimed, took advantage of that state of mind and persuaded her brother to make a will in her favor. They further pleaded that Messerer made three other wills after the will of 1897. One, it is alleged, was made in 1900; another in 1907 or 1908; and a third in 1919. None of these wills could be produced, and it was alleged that they were lost.

In the trial evidence was produced tending to support the facts pleaded by contestants. In response to special issues the jury found against the contestants upon the issue of undue influence. They also found that no will had been executed by Messerer in 1908. But they further found that Messerer did execute a second will in 1900, and a third in 1919, and that each of those wills revoked all previous wills. Upon those answers the court entered a judgment refusing to probate the will of 1897. The contestants did not attempt to probate any other will, but only sought to defeat the probate of the first will. They were apparently willing to take part of the property under the law of descent and distribution.

The real controversy in the trial below was, Did Fritz Messerer make a will after 1897 revoking the will offered for probate? The principal complaint in this appeal relates to the exclusion of statements and declarations of the testator which tended to show that no subsequent will was made by him, and that the first was the only will he had ever made. As proof of the execution of a will in 1900 the contestants offered the testimony of J. A. Underwood, the substance of which is as follows:

Witness was well acquainted with Messerer, and was president of a bank in which Messerer held stock. Some time in 1900 he had occasion to assist Messerer in the preparation of a will. He did that at Messerer's request. Messerer wanted to dispose of his property by will, and his sister Mrs. Dannenbauer put in charge of it on account of some objection to her husband. He did not want her husband to have the management or control. Messerer requested witness to write a will for him, to which the witness finally consented, and used as a guide a form book. From the data furnished him by Messerer he wrote a will, which devised all of the testator's property to his sister Margaret, and she was made executrix. When asked if the will contained a clause revoking former wills, the witness stated that according to his best recollection it did, but he was not certain. He was certain, however, that if the form book contained a revoking clause, then that clause was written into the will. He stated that the will was signed by him as a witness, and by another adult person, whose name he had forgotten. He said:

"I signed it and this other person signed it, and then I turned it over to Fritz and I have not seen that will since. I read the will over to Fritz, and he signed his name to it then. Fritz signed his name first. I was present when he signed it, and he was present when I signed it and when the other person signed it. The explanation that he gave for wanting to make the will was that he wanted to fix his property and the management of it in `Sister Margaret.' At that time he was of sound mind, and remained so as long as he lived, so far as I know."

As proof of the execution of the will of 1908 contestants offered the testimony of E. C. Armstrong, who testified, in substance, as follows:

In 1908 witness was engaged in the practice of law in Honey Grove, and was acquainted with Messerer, who was in business at the same place. In the practice of law witness was associated with J. W. Gross, who wrote a will for Messerer in 1897. He remembered the occasion of Gross writing a will for Messerer about 1908. He thought he read the will, or most of it. He remembered distinctly standing at the back of Gross while he was writing it, who told witness what he was doing. He did not remember the terms of the will, except that it appeared to be rather liberal with the nieces and nephews of the testator. Witness could not state whether or not that will was ever signed by Messerer or by witnesses.

As evidence of the execution of the will of 1919 contestants offered the testimony of Miss Lillian Knox, the substance of which is as follows:

She was employed as stenographer in the office of J. N. Baldwin, an attorney residing in Honey Grove, during the years 1918 and 1919. While she worked for Baldwin he did much work for Messerer. He wrote deeds for Messerer, and a will also. Witness recalled distinctly the occasion of Baldwin's writing a will for Messerer some time in March, 1919. In response to a message Baldwin went over to Messerer's place of business. A short time later both Baldwin and Messerer returned to the office, and while Messerer was there Mr. Baldwin dictated a will, which she wrote on her typewriter. Witness stated that she remembered the following clause in the will:

"I, Fritz Messerer, of Honey Grove, Fannin county, Texas, being of sound mind and memory, do hereby make this my last will and testament, hereby revoking all wills heretofore made by me."

In the second clause he wanted a decent Christianlike funeral and his debts paid. The will then went on to bequeath property to different ones. Witness recalled Mrs. Dannenbauer's name. Several others were mentioned in the will, including a brother, a sister, and some nieces and nephews of Fritz. Messerer remained in the office until the will was finished, and witness saw him sign it. Mr. Baldwin signed the will as a witness, and she did also, according to her best recollection. She was positive that the will was signed and witnessed. No one else was in the office at the time except those three. After the will was signed, Messerer told Mr. Baldwin to take it to the State National Bank for him. Witness put the will in an envelope and sealed it.

Testimony was offered by proponent tending to impeach the witnesses Underwood and Miss Knox by showing that they had previously made statements to the contrary of what they testified in the trial, after each of those witnesses denied making the conflicting statements.

During the trial the proponent, Margaret Dannenbauer, was called as a witness by the contestants and was asked this question: "Did Fritz ever tell you about writing another will?" to which she answered, "No." On cross-examination the witness was asked by her counsel this question: "I will ask you if Fritz had any trouble in the way of sickness when he sent for the will?" to which the witness answered, "Well, he was kind of sick last winter." Counsel then said: "I will ask you if he did not at that time tell you this was his will and that he had never made any other?" At that juncture the contestants objected to any statements made by the deceased as to the contents of the will or what he had done, and further because the witness was disqualified under the law to testify to any transactions between herself and the deceased. The objection was sustained. The bill of exception shows that if the witness had been permitted to do so, she would have answered as follows: "Fritz Messerer had stated to her during his...