Estate of Montgomery, Matter of

• Decision Date: 31 May 1994
• Docket Number: No. 12-92-00133-CV,12-92-00133-CV
• Citation: 881 S.W.2d 750
• Parties: In the Matter of the ESTATE OF Stuart MONTGOMERY, Deceased.
• Court: Texas Court of Appeals

Page 750

881 S.W.2d 750

In the Matter of the ESTATE OF Stuart MONTGOMERY, Deceased.

No. 12-92-00133-CV.

Court of Appeals of Texas,

Tyler.

May 31, 1994.

Rehearing Denied July 28, 1994 and Aug. 31, 1994.

Mike Hatchell, Tyler, for appellant.

Robert M. Bandy, Tyler, for appellee.

RAMEY, Chief Justice.

The Appellant, LaVonne Montgomery ("LaVonne"), brings this appeal from a judgment refusing to admit a will of her late husband, Stuart Montgomery ("Stuart"), to probate. The lower court's refusal was based on a jury verdict that the will was not validly executed and was the product of undue influence, as contended by Appellee, Dana Ann Spruiell ("Dana"), Stuart's daughter. We will reverse and render the judgment with respect to the will's proper execution, and remand for a new trial on the issue of undue influence.

Stuart married the former LaVonne Russell in January, 1991. They met the previous year, and were engaged in October, 1990. Both had been previously married, had children from their previous marriages, and had survived the death of their first spouses. Stuart had two children during his first marriage, Dana and Sandra. Sandra died many years before Stuart met LaVonne, but was survived by a son, Brent Tidwell.

The record contains two wills executed by Stuart. In the first, executed on March 23, 1989, Stuart left his entire estate to his daughter Dana. The second will, executed on May 14, 1991, ¹ left everything to Stuart's wife, LaVonne, with the exception of his real property, which was devised to Dana "subject only to my said wife's possessory homestead interest therein;" this second will was the one which LaVonne sought to admit to probate below, and which Dana successfully contested.

In the first special issue, the jury found that "the Last Will and Testament of Stuart Montgomery dated May 14, 1991" was not "executed with the formalities and solemnities and under the circumstances required by law to make it a valid Will." LaVonne's first point of error asserts that the trial court erred in overruling LaVonne's motion for judgment notwithstanding the verdict, because the evidence conclusively established that the May 14 will was validly executed, and because there was no evidence of undue influence. Her second point of error maintains that, even if there were some evidence to support the challenged jury findings, such findings were against the great weight and preponderance of the evidence.

As the party with the burden of proof on whether the will was validly executed, LaVonne must demonstrate that the evidence conclusively established all essential facts in support of the issue. We determine whether this has been accomplished by first examining the record for evidence that supports the jury finding, ignoring all evidence to the contrary. Then, if no evidence supports the challenged finding, the entire record must be examined to determine if the contrary proposition is established as a matter of law. Barrett v. U.S. Brass Corp., 864 S.W.2d 606, 626-27 (Tex.App.--Houston [1st Dist.] 1993, writ granted).

The contested will was unquestionably drawn and executed in conformity with the requirements of Sec. 59, TEX.PROB.CODE ANN., which provides that

Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator in person or by another person for him by his direction and in his presence, and shall, if not wholly in the handwriting of the testator, be attested by two or more credible witnesses above the age of fourteen years who shall subscribe their names thereto in their own handwriting in the presence of the testator.

Dana stipulated, in the course of the trial, that the will in question was signed by Stuart and that Stuart had full testamentary capacity on the day he signed it. The witnesses to the will testified without contradiction that they personally observed Stuart sign the will. There was no evidence supporting the finding that the will was not validly drawn, executed, and witnessed.

Dana argues that the will introduced into evidence is not the will as drawn, signed, and witnessed, because Stuart, sometime between the time the will was executed and his death, heavily obliterated one or more lines in the will by marking through them. The testimony of the attorney who drafted the will established that the obliterated language purported to invalidate a pre-nuptial agreement between Stuart and LaVonne, entered into prior to the marriage; likewise there is no dispute that such language in the will was known to Stuart to be inoperative to accomplish what it purported to do as testified by the attorney.

Dana contends that the will offered into evidence was not the will witnessed, since the will, when executed and witnessed, had no passages marked out. ² But the jury issue was whether, on May 14, such will was "executed with the formalities and solemnities and under the circumstances required by law to make it a valid will." There was no inquiry of the jury about the validity of the attempt to eliminate the obliterated passage. The will's execution was a particular event that occurred at a specific time. The subsequent obliteration of a portion of the will was an independent act which occurred at a different time. The jury issue only asked about the actual act of executing the will. As stated, there was no evidence supporting the finding that the will's execution did not comply with the requirements of Section 59 of the TEXAS PROBATE CODE.

Finally, Dana argues that LaVonne should have made a specific offer of the May 14 will into evidence as originally drafted, prior to the obliteration. No cases were cited to support this contention. We hold that there was no reversible error in offering the May 14 will in the condition that it existed when Stuart died; if improper, there was no objection to the offer. The language of the offer of the will did not affect the special issue directly inquiring as to the will's compliance with the requirements of Section 59 when executed on May 14.

Not only does the record contain no evidence supporting the jury's finding, the entire record conclusively establishes the contrary proposition. LaVonne's first point of error with respect to the first jury issue is sustained.

LaVonne additionally contends in her first point of error that the lower court erred in failing to grant her motion for judgment notwithstanding the verdict, because there was no evidence supporting the jury's finding on the second jury issue, that the will was the product of undue influence. A court reviewing a failure to grant a motion for judgment notwithstanding the verdict must examine the evidence in the light most favorable to the jury's findings, considering only the evidence and the inferences that support the verdict and rejecting any contrary evidence and inferences. Multi-Moto v. ITT Commercial Finance, 806 S.W.2d 560, 565 (Tex.App.--Dallas 1990, writ denied). The failure to grant such motion will be found erroneous only if no more than a scintilla of evidence in the record supports the disputed jury findings. Wal-Mart Stores, Inc. v. Hinojosa, 827 S.W.2d 43, 44-45 (Tex.App.--Corpus Christ 1992, no writ).

A will may be set aside on the grounds of undue influence only if the contestant proves:

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.

Watson v. Dingler, 831 S.W.2d 834, 837 (Tex.App.--Houston [14th Dist.] 1992, writ denied).

Since there is seldom direct evidence of undue influence, it may be proven by circumstantial evidence. Gaines v. Frawley, 739 S.W.2d 950, 952 (Tex.App.--Fort Worth 1987, no writ). Among the factors typically considered are

evidence of infirmity of mind produced by age, ill health, circumstances attending the execution, opportunity for the exercise of influence that would destroy the exercise of free agency, and an unnatural or unjust disposition by the instrument.

In re Estate of Riley, 824 S.W.2d 305, 306 (Tex.App.--Corpus Christi 1992, writ den.). But

[w]hen circumstantial evidence is relied upon [to establish undue influence], the circumstances must be so strong and convincing and of such probative force as to lead a well-guarded mind to a reasonable conclusion not only that undue influence was exercised but that it controlled the will power of the testator at the precise time the will was executed.

Green v. Earnest, 840 S.W.2d 119, 121 (Tex.App.--El Paso 1992, writ denied). A finding of undue influence may not rest solely on circumstantial evidence which is equally consistent with the absence of undue influence. Smallwood v. Jones, 794 S.W.2d 114, 118 (Tex.App.--San Antonio 1990, no writ). Nor will evidence of pressure by the beneficiary or mental confusion on the part of the testator amount to evidence of undue influence unless they establish that the free agency of the testator was destroyed. Ibid. Similarly, circumstances which merely raise a surmise or suspicion of undue influence will not be sufficient to support such a finding. Green v. Earnest, 840 S.W.2d at 123.

These standards, and the cases applying them, require evidence beyond that of mere influence or persuasion to establish undue influence. The degree of pressure asserted, as noted above, must be such that it subverts or overpowers the mind of the testator at the time of the execution of the testament.

An example of outside pressure sufficient to subvert or overpower the mind of the testator at the time of the execution of the testament is found in Watson v. Dingler, 831 S.W.2d 834 (Tex.App.--Houston [14th Dist.] 1992, writ denied). There the physically and mentally feeble testator, a week before his death, changed his will in favor of a beneficiary who kept him up an...