Farmer v. Dodson

• Decision Date: 15 May 1959
• Docket Number: No. 15511,15511
• Parties: Mrs. David Newton FARMER, Appellant, v. Hazel F. DODSON et al., Appellees.
• Court: Texas Court of Appeals

Page 57

326 S.W.2d 57

Mrs. David Newton FARMER, Appellant, v. Hazel F. DODSON et al., Appellees.

No. 15511.

Court of Civil Appeals of Texas, Dallas.

May 15, 1959.

Rehearing Denied June 26, 1959.

Justice, Justice & Kugle, Athens, for appellant.

Mays & Jacobs, Corsicana, Willis D. Moore Athens, for appellees.

DIXON, Chief Justice.

This is a will contest.

David Newton Farmer, 62 years of age, a resident of Henderson County, Texas, died February 10, 1957, of lung cancer after a long illness. In a holographic will dated October 20, 1955 he left all of his property, consisting chiefly of about 700 acres of land, to Dora Farmer, his surviving widow, his third wife.

This instrument was admitted to probate as a holographic will without contest, but shortly afterwards a contest was filed in the County Court by two grown daughters and two minor grandsons of testator. The two daughters and the deceased father of the two grandsons were children of the testator by his second wife. Appellees lost their contest in the County Court and appealed to the District Court.

The trial in the District Court was before a jury. Only one issue was submitted to the jury: Whether at the time David Newton Farmer executed the purported will on October 20, 1955 he had testamentary capacity, as that term had been defined in the court's charge. The answer of the jury was that he did not have testamentary capacity. Based on the jury verdict judgment was rendered setting aside the order probating the will; and denying the application of Dora Farmer for probate of the instrument.

By way of background facts the record before us shows that the testator's first marriage did not last long and ended in divorce. His second marriage, during which his three children were born, lasted 26 years and ended finally in divorce. It was during this marriage that a good portion of his property was accumulated. His third marriage to Dora Farmer had lasted 16 years at the time of his death. No children were born of his third marriage.

His surviving widow, Dora Farmer, appellant herein, had also been married three times. Her first marriage lasted nine years and ended in divorce. Her second marriage also lasted nine years and also ended in divorce. Two children, now grown, were born of this second marriage. Her third marriage was to the testator, David Newton Farmer.

In her first two points on appeal appellant Dora Farmer alleges (1) that the trial court erred in overruling her motion for instructed verdict because the evidence adduced by appellees was insufficient to raise a fact issue; and (2) that the court erred in overruling her motion for judgment notwithstanding the verdict because (a) there was no evidence to support the verdict, and (b) the verdict was against the overwhelming weight and preponderance of the evidence.

We must overrule appellant's first two points. As we shall endeavor to show in a summary of the evidence later in this opinion, it would be incorrect for us to say that there is no evidence in the record before us in support of the jury's verdict. And it would be error as a matter of law for us to hold that the trial court should have sustained appellant's motions for instructed verdict and judgment notwithstanding the verdict even if we were to find as a fact that the evidence was insufficient to support the verdict. We shall not pause here to discuss the difference between the 'no evidence' rule and the 'insufficient evidence' rule. The difference has already been discussed in serveal opinions by our Supreme Court, including King v. King, 150 Tex. 662, 244 S.W.2d 660; by Justice Garwood in 30 Tex.Law Review 803, for October 1952; and by the present writer in a concurring opinion in Wood v. American Security Life Ins. Co., Tex.Civ.App., 304 S.W.2d 559, at page 565.

Appellant's third point is that the trial court erred in overruling appellant's motion for new trial because (1) there was no evidence to support the verdict and (2) the verdict was so against the overwhelming weight of the evidence as to be manifestly unjust. The nature of this point requires us to make a careful study and analysis of the evidence.

Appellant introduced twenty-three witnesses who testified in regard to the testator's mental condition. Among them were relatives, friends, neighbors, and men who had dealt with the testator in various business matters. We shall not attempt to set out a summary of the testimony of each of these witnesses. All of them gave testimony favorable to appellant's contention that David Newton Farmer was possessed of testamentary capacity when he wrote the will of October 20, 1955. Prior to his death the testator had exhibited the will to several of them and talked to them about it. There was evidence that the testator had once had a fight with his son Earl.

Dr. Louis E. Gibson, the attending physician at the time of testator's death, testified that in january 1957 prior to an operation for lung cancer, Farmer, was mentally alert and had full possession of his faculties; that he was not given any barbiturates for a week prior to the operation; that a person addicted to the use of barbiturates would manifest observable withdrawal symptoms if suddenly taken off of barbiturates, but that Farmer had exhibited no such symptoms.

Tom Evans, President of Farmers and Merchants State Bank testified that Farmer was a customer of the Bank; that in the spring of 1956 the Bank loaned him $1,000, for which Farmer executed a note; he appeared to be rational and coherent; witness did not believe there was anything wrong with Farmer's mind; the will of October 20, 1955 was wholly in the handwriting of Farmer; Farmer had talked to him about a will and the witness had shown Farmer a copy of a holographic will which witness had in his files; later Farmer returned with his own holographic will of October 20, 1955; turned it over to the witness, who kept it in his possession until Farmer's death in 1957.

The contestants, appellees here, introduced ten witnesses on whose testimony they rely mainly to support the jury's verdict that the testator lacked testamentary capacity when he wrote the will of October 20, 1955. It is to their testimony for the most part that we must look to determine whether there was sufficient evidence to support the jury's verdict. We therefore present herewith a condensed summary of the testimony of these witnesses.

R. A. Laney. Pharmacist and owner of drug store; knew Farmer many years; beginning spring of 1955 filled prescriptions for Farmer for barbiturates, first phenobarbital, later sodium seconal, purpose to produce sleep and ease pain; Farmer was uneasy about himself; witness couldn't find prescriptions; but believed on three or four occasions he sold Farmer either 30 or 40 or 100 capsules, 1 1/2 grains each of seconal, at intervals of a month or six weeks, didn't know dosage prescribed for Farmer by his doctor; in his opinion a man fighting for his life could take 12 grains as maximum safe dosage; Farmer was always rational and coherent.

Mattie Crowley. Sister of testator; nurse; testator was fond of his children and grandchildren, especially his crippled daughter, Hazel and her young son, who had a difficult time financially; he had the idea that Hazel drank whiskey to excess; in 1947 Farmer had an operation for stomach ulcers and had 70% of his stomach removed; suffered greatly since that time; about 2 1/2 years before death had formed the habit of taking barbiturates; they made him irritable at times, alternating in moods between depression and elation; he died of cancer of the lungs; witness feared he would commit suicide; his wife Dora said she also feared he would kill himself and her too; in opinion of witness Farmer was of unsound mind on October 20, 1955; and did not know extent of his property, did not understand business in which he was engaged, or know natural objects of his bounty, or understand effect of his act in making will.

However, this witness, Mattie Crowley, admitted on cross-examination that as far as her personal observation was concerned, her brother never did anything to suggest to her that he was not of sound mind, other than the making of the will; she did not remember any irrational conversation with him; he knew his three children and who they were; knew what properties he owned; he was devoted to Dira who was a good wife; Dora loved him; she didn't know that he had ever had a fight with his son Earl.

Dr. Mayfield. Gave medical testimony as to effects of excessive use of barbiturates; resembles effect of alcoholic intoxication; abrupt withdrawal from use can cause convulsions and delirium; person becomes devoid of normal mental processes; unpredictable results; skin reshes may develop; he never saw or talked to Farmer; in response to very lengthy hypothetical question he answered 'I would say that the man was of unsound mind;' basis of his opinion: a habitual user of barbiturates cannot be relied on.

W. L. Lightfoot. In early summer of 1955 Farmer told him of making a will dividing his property equally between his wife and children; Farmer said he wanted Earl's children to have what was coming to them out of his property; in later years Farmer was irritable; would quickly fly into a rage.

Sam Holland. Attorney, in 1945 prepared a will for Farmer leaving his property to wife and children; about three months before his death Farmer came by Holland's office and picked up the will, which had remained in Holland's possession for safe keeping.

M. T. Dodd. Farmer in later years became irritable and quick to anger; spoke of his poor health; he was 'hardheaded'; seemed all right at times, other times not; showed poor judgment; he and Farmer disagreed as to how best to build a lake.

W. A. Williams. Knew Farmer since 1934, had business dealing with him; Farmer thought a lot of Earl's boys, talked of Earl and bragged about him; sick and irritable; Farmer said on several occasions that he...