Earl v. Mundy

• Decision Date: 13 January 1921
• Docket Number: (No. 1148.)
• Citation: 227 S.W. 716
• Parties: EARL et al. v. MUNDY.
• Court: Texas Court of Appeals

227 S.W. 716

EARL et al. v.MUNDY.

(No. 1148.)

Court of Civil Appeals of Texas. El Paso.

January 13, 1921.

Rehearing Denied February 10, 1921.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Proceedings for probate of will of J. J. Mundy, deceased, by Harriet Mundy, contested by Ella D. Earl and others.From that part of the judgment admitting the codicil to probate, the contestants appeal.Affirmed.

See, also, 227 S. W. 970.

Lea, McGrady, Thomason & Edwards and L. A. Dale, all of El Paso, for appellants.

F. E. Hunter and Davis & Goggin, all of El Paso, for appellee.

WALTHALL, J.

Harriet Mundy, appellee, offered for probate in the county court of El Paso county, Tex., the last will and testament, and the codicil thereto, of J. J. Mundy, deceased.The will was dated October 8, 1919, and the codicil dated October 14, 1919.The will and the codicil were by the order of the county court admitted to probate as the last will and testament of J. J. Mundy, and a judgment to that effect was duly entered by the court.Appellants herein had the following entry made in the judgment:

"To such of the foregoing judgment as establishes and admits to probate said codicil dated October 14, 1919, as a part of the last will of said decedent, the contestants, Ella D. Earl, W. H. Earl, and Nellie M. Stewart, D. P. Stewart, Clara Mundy, Robert Mundy, Laura A. Kinkle and C. A. Kinkle, in open court, excepted and gave notice of appeal to the Forty-First judicial district court."

The contest of appellants to the probating of the codicil of the will is based on the allegation in the contest filed that the alleged codicil is not any part of the will of said decedent, nor was the same his act, for the reason that when he signed the same, if he ever did, he was not then of sound or disposing mind, and that same was procured by undue influence practiced upon him by Harriet Mundy, the principal beneficiary therein.Contestants in their appeal from the order of the probate court filed their appeal bond, in which it is recited:

"From which judgment, in so far as it admits to probate said alleged codicil dated October 14, 1919, said contestants desire to perfect an appeal to the district court of El Paso county, Tex., in and for the Forty-First Judicial District."

The cause was tried de novo in the district court, and judgment there rendered, admitting the will and codicil to probate.A motion was made to set aside the verdict and judgment and to grant a new trial, which motion was overruled, and contestants gave notice and perfected an appeal to this court.

Appellants in their brief present the proceeding as one to probate a codicil to the will, and that the appeal was taken from the order probating the codicil.The case was tried on appeal in the district court before a jury, on special issues, resulting in a judgment probating the will and codicil.J. J. Mundy made his will on the date stated, by which he gave the Episcopal Church $2,000, F. H. Nolte and Robert Narzinski $1,000 each, $500 per month to his wife, Harriet Mundy, for her life, made her independent executrix without bond, and gave her possession of the estate as trustee during her life, subject to the foregoing; gave one half of his estate in trust for his sister, Ella Earl, the other half in trust for Lizzie Mundy, the widow of a deceased brother, for life; the remainder to his nieces, Nellie Stewart, Laura Kinkle, Clara Mundy, and nephew, Robert Mundy, children of the deceased brother.The will was probated in the county court of El Paso county, and no appeal was taken therefrom except as to the codicil.Harriet Mundy at the same time offered for probate the codicil to the will, dated as above, of J. J. Mundy, by which $3,000 instead of $2,000 was given to the Episcopal Church, a Mr. Miller, not mentioned in the original will, was given $500, and Harriet Mundy, testator's wife, appellee herein, was given $1,000 per month for her life, instead of $500, as in the will, or, at her option testator's one half interest in the Ellanay Theater property, in El Paso, absolutely.J. J. Mundy died after an operation, about 18 hours after making the codicil to his will.

Appellee filed a motion in this court to require appellants to file an adequate bond herein for the protection of the rights of the parties, and in case of failure to do so, to dismiss the appeal.The grounds of the motion are stated to be that no proper or sufficient appeal bond or supersedeas bond has been filed to support this appeal, and that the instrument filed herein purports to be a supersedeas bond in the sum of $1,000, but that it is insufficient in law, and without effect as a supersedeas bond, the amount not having been fixed by the court or any other authority in said amount.

Appellants gave due notice of appeal, and filed their bond within the time required.The bond recites that a final judgment was rendered by the court in the case, giving the date of its rendition, the number and style of the case, recites that the court admitted to probate as a part of the last will of J. J. Mundy, deceased, a certain document "bearing date October 14, 1919, and purporting to be a codicil made by the decedent to his last will of date October 8, 1919, from which judgment the herein named appellants have appealed to the Court of Civil Appeals and desire to suspend execution on the judgment pending appeal."The rest of the bond is in the usual form of a supersedeas bond, acknowledging themselves bound in the sum of $1,000, and conditioned as required by article 2101, Vernon's Sayles' Texas Civil Statutes.The bond is approved and filed by the clerk.The record does not show that the clerk of the court from which the appeal is prosecuted fixed the probable amount of the costs of the suit in the Court of Civil Appeals, Supreme Court, and the court below, but certifies only the amount of the costs that had accrued in the district court to be $73.30.

The clerk of the trial court under the statute fixes the amount of the bond, whether the bond is a cost bond or a supersedeas.In Davis, Collector, v. Burnett(Sup.)7 S. W. 678, and in Horstman v. Little, 98 Tex. 342, 83 S. W. 679, the Supreme Court in each of the cases states the rule to be that the approval of the bond by the clerk was sufficient evidence that it was in double the amount of the probate costs as fixed by him.The bond being in form of supersedeas covers all the elements of an appeal bond for costs.Zapp v. Michaelis, 56 Tex. 395.The judgment of the trial court admitted the will and codicil to probate and record as such.No judgment was rendered against appellants, not even for costs; but, assuming that appellants, if cast in the suit, would be liable for costs in the trial court and on appeal, and the amount of execution of the judgment suspended, it is not made to appear just what amount of execution of the judgment more than costs would be suspended by the giving of a supersedeas bond, so as to determine the amount for which the bond should be given if for more than for costs.In Crary v. Port Arthur, C. & D. Co., 45 S. W. 842, in a condemnation proceeding, and in which it was held that, like other judgments, a judgment in condemnation proceedings under the present law cannot be enforced if there is a supersedeas bond until after final adjudication in the court of last resort; and also held, as to the sufficiency of a supersedeas bond conditioned as required by law, that where no money judgment was rendered against appellanthe should not be required to give a bond in double the value of the right of way as ascertained by the judgment of the court.The court further held that the bond being for more than double the amount of the probable costs as fixed by the clerk would be sufficient as a supersedeas.We are of the opinion and so hold that the bond found in the record is not subject to the criticism pointed out in the motion, and that the motion should be overruled.

By the first assignment appellants complain of the following charge as being upon the weight of the evidence:

"Ordinarily less mental capacity is requisite to enable a person to make a will or codicil to a will than is necessary for the same person to make a contract, or to engage in a struggle with another in which he is bartering to secure the best terms, or to engage in an intricate or complex business matter."

The statute provides that, in instructing the jury, the judge shall not charge or comment on the weight of the evidence.To be competent and have power to make the codicil to his will, J. J. Mundy, at the time of making the codicil, must have been "of sound mind."Article 7855, V. S. Tex. Civ. Statutes.The inquiry to which the attention of the jury was called by the above charge was the vital one in the case, the inquiry as to the testamentary capacity of J. J. Mundy at the time he executed the paper admitted to probate, as a codicil to his will.The matters in the given charge to which the mind of the jury was directed were not necessary, were more or less confusing, and were misleading.It was necessary and would be proper to direct the jury to inquire as to the capacity of the testator to know and understand the nature and effect of the matters stated in the paper he was then signing, but, as said by the Supreme Court on the first appeal, in Brown v. Mitchell, 75 Tex. 9, 12 S. W. 606, it may be doubted if charges enumerating so many things have a tendency to enable juries as clearly to understand their duties in such cases as would a simple charge to the effect that one had testamentary capacity if his mind and memory, at the time the paper was executed, were sufficiently sound to enable him to know and understand what he was doing in executing the paper and the effect of his act.

On the second appeal of Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64, one of the grounds of error presented was the refusal of the trial court to...