Estate of Davis

• Citation: 920 S.W.2d 463
• Decision Date: 03 April 1996
• Docket Number: No. 07-95-0238-CV,07-95-0238-CV
• Parties: ESTATE OF Ruby L. DAVIS, Deceased.
• Court: Court of Appeals of Texas

Page 463

920 S.W.2d 463

ESTATE OF Ruby L. DAVIS, Deceased.

No. 07-95-0238-CV.

Court of Appeals of Texas Amarillo.

April 3, 1996.

Rehearing Overruled May 10, 1996.

Agnew & Reed, PLLC Ronnie L. Agnew, Lubbock, for appellant.

Gorsuch & Byrd, James L. Gorsuch, Lubbock, for appellee.

Before REYNOLDS, C.J., and DODSON and BOYD, JJ.

DODSON, Justice.

Bobby, Annessia, and Tina Davis, and Donna Thompson (appellants) appeal from the judgment of the trial court setting aside the last will of their mother as being procured through undue influence, and admitting a previous will to probate. By two points of error, appellants contend the evidence is both legally and factually insufficient to support the jury's finding that Ruby Davis's last will resulted from undue influence. We reverse and remand.

Ruby and Edgar Davis had six children: David, Eddie, Donna, Bobby, Annessia and Tina. On April 12, 1990, Ruby and Edgar executed wills, devising the estate to the surviving spouse, or to the six children in equal shares if the spouse predeceased the testator, and naming Eddie as a successor executor. Edgar became ill in June of 1990 suffered declining health, and was hospitalized for cancer of the larynx in May of 1991. He remained in the hospital for approximately 44 days, and died June 30, 1991.

During Edgar's last illness, conflicts began to develop in the family. Ruby decided against having Edgar undergo a surgical procedure so that he could be force-fed, and Eddie and David hired an attorney to challenge her decision. Eddie engaged in an argument with Annessia and Tina over the care they were taking of their parents' home, and he left a threatening note on Annessia's car. Annessia, with Tina's assistance obtained a peace bond against Eddie, and Donna later also obtained a peace bond against Eddie. These peace bonds, for all practical purposes, resulted in Eddie being unable to go to his mother's house unless the daughters were elsewhere.

After Edgar died, further conflicts arose over the choice of a casket, where Edgar would be buried, and whether the casket would be open or closed during the funeral. Eddie and David also took two guns they believed their father had given them, from their parents' home without Ruby's knowledge.

After Edgar's funeral, Eddie and David had no further contact with their mother. Likewise, Ruby also made no attempts to reconcile. Annessia and Tina, however, lived with Ruby for some time after Edgar's death, and it is undisputed that they had several conversations concerning the hurtful actions of Eddie and David during the time of, and after, their father's illness.

In October of 1991, Ruby visited an attorney and asked him to change her will. She discussed with him the conflicts that had developed in her family, and requested changes be made so that upon her death, Eddie would not be the executor, Eddie and David each would receive $1,000.00, and the rest of her estate would be divided between Bobby, Donna, Annessia, and Tina. Ruby visited her attorney for a second time to give him a letter detailing her reasons for wanting to change her will, and she actually executed the new will on her third visit.

Ruby Davis died in March of 1994, and appellants sought to have her October 1991 will admitted to probate. Eddie and David contested the will, and after the jury found undue influence was exerted by Donna, Annessia, and Tina, the trial court rendered judgment in contestants' favor. Appellants subsequently perfected this appeal.

Appellants assert the trial court erred in overruling their motion for new trial because there was no evidence to support the finding of undue influence, and alternatively that overruling their motion was in error because the evidence was factually insufficient to support the finding.

When reviewing a no-evidence point, we consider only the evidence and inferences favorable to the judgment, and disregard all evidence and inferences to the contrary. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). When considering whether the evidence is factually sufficient to support the judgment, we will consider and weigh all of the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Plas-Tex v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). Mindful of these standards of review, we now turn to the finding of undue influence.

Influence is considered undue when the free agency of the testator is destroyed, and a testament is produced that expresses the will of the one exerting the influences rather than the testator's true wishes. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.1963). Before a testament may be set aside on the grounds of undue influence, the contestant has the burden to prove:

1. the existence and exertion of an influence;

2. the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and 3. the execution of a testament which the maker thereof would not have executed but for such influence.

Id.

These elements may be proved by circumstantial, as well as direct, evidence. Estate of Montgomery, 881 S.W.2d 750, 754 (Tex.App.--Tyler 1994, writ denied). However, a finding of undue influence may not be predicated upon circumstances which are equally consistent with the absence of, or do no more than raise a mere suspicion of, undue influence. Id.; Green v. Earnest, 840 S.W.2d 119, 123 (Tex.App.--El Paso 1992, writ denied).

In determining whether the evidence is legally and factually sufficient to support a finding of undue influence, our initial inquiry focuses upon the relationship between the testator, the contestants and the party accused of exerting undue influence. In determining whether undue influence was in fact exerted, we assess the opportunities existing to exert the influence, the circumstances surrounding the execution of the document, the existence of any fraudulent motive, and whether the testator was habitually subjected to the control of the party accused. Rothermel v. Duncan, 369 S.W.2d at 923.

The relationship between Ruby and her children undoubtedly provides the environment for such an influence to exist. She was deeply hurt by Eddie and David during and after Edgar's death, and had no contact with them; while at the same time, she was constantly surrounded by and involved in the lives of her daughters. Therefore, we think it quite logical that her daughters would be influential in her life.

Somewhat less clear, however, is the related question of whether that influence was actually exerted. The daughters did have opportunities to exert influence over their mother, as Annessia and Tina lived with Ruby...