Fenn v. Boxwell

• Decision Date: 07 April 1958
• Docket Number: No. 6761,6761
• Citation: 312 S.W.2d 536
• Parties: Myrtle B. Sowell FENN et vir, Appellants, v. Howard E. BOXWELL, Appellee.
• Court: Texas Court of Appeals

Page 536

312 S.W.2d 536

Myrtle B. Sowell FENN et vir, Appellants, v. Howard E. BOXWELL, Appellee.

No. 6761.

Court of Civil Appeals of Texas, Amarillo.

April 7, 1958.

Rehearing Denied May 5, 1958.

Herbert C. Martin, Amarillo, for appellants.

Monning & Monning, Amarillo, for appellee.

CHAPMAN, Justice.

This suit was first instituted as a Bill of Discovery by Mrs. Myrtle B. Sowell Fenn and husband, R. J. Fenn against Howard E. Boxwell under Rule 737, Texas Rules of Civil Procedure. Later the pleadings were amended and alleged trespass to try title, followed by pleas for cancellation and rescission of a deed from Mrs. Myrtle B. Sowell to Howard E. Boxwell while she was a single person, that certain contracts, together with said deed, should be cancelled and held for naught because of lack of mental capacity on the part of Mrs. Sowell at the time she executed them, and because of the exercise of undue influence by Howard E. Boxwell over Mrs. Sowell at said times. Appellants also pleaded both actual and exemplary damages against appellee for malicious and wanton interference, disturbance and annoyance, but never sought any submissions under such latter allegations and seeks no relief in this court for failure to submit issues thereon. Appellee sought judgment validating his title to the property in controversy, subject to Mrs. Sowell's life estate.

The property in controversy is known as the Plaza Hotel property located at 910 Tyler Street, Amarillo, Texas.

The case was tried to a jury and every issue submitted was answered against appellant and favorable to appellee. In said answers the jury found (1) Mrs. Sowell executed and delivered the contract of February 21, 1956; (2) at said time she was not mentally incapacitated to the extent that she was unable to understand and comprehend the nature and effect of such instrument and of her act in executing and delivering it; (3) at said time she was not acting under mental duress by Howard E. Boxwell; (4) she was not caused to execute it by the exercise of undue influence over her by Howard E. Boxwell; (5) she signed and acknowledged the 'Correction Warranty Deed' identified during the trial as Defendant's Exhibit No. 12; (6) at the time she signed and acknowledged the 'Correction Warranty Deed' she was not mentally incapacitated to the extent that she was not able to understand and comprehend the nature and effect of her act; (7) at the time she signed and acknowledged the 'Correction Warranty Deed' shw was not acting under mental duress by Howard E. Box-well; (8) at the time she signed and acknowledged said deed she was not caused to do so by the exercise of undue influence over her by Howard E. Boxwell; (9) she executed the will referred to throughout the case as Plaintiff's Exhibit No. 6; (10) she was not mentally incapacitated at the time of executing the will to the extent that she was not able to understand and comprehend the nature and effect of the instrument and of her act in executing it; (11) at the time she executed said will she was not acting under mental duress by Howard E. Boxwell; (12) at the time she executed said will she was not caused to do so by the undue influence of Howard E. Boxwell, and (13) at the time she executed the will she intended thereby to ratify the 'Correction Deed.' Judgment was accordingly rendered against plaintiffs, from which they appealed. The record having failed to establish that R. J. Fenn owns any interest in the property in controversy, the parties will hereinafter by referred to as appellant and appellee.

On May 19, 1955, Irvin Sowell, an only son of appellant, and his wife were both killed in an automobile accident on the highway between Amarillo and Dumas. Howard E. Boxwell, appellee, of Boxwell Bros. Funeral Home handled the funeral services for appellant's son and daughter-in-law and was paid for the services by Mrs. Irvin Sowell's son by a former marriage, Roy Lusk. On July 21, following the funeral services aforesaid, appellant deeded to appellee her Plaza Hotel property at 910 Tyler in Amarillo for certain considerations that will be later more fully described. The deed provided:

'It is distinctly understood that the grantor herein is excepting and reserving from this conveyance all of the rent and revenues from the property herein conveyed as long as she may live and the grantor is to pay all taxes, insurance and repairs during the time she has the occupancy, possession and is collecting all the rents and revenues from the property.

'It is understood that there is an outstanding deed of trust lien against this property in favor of the First Federal Savings and Loan Association of approximately $24,600.00 evidenced by a note payable to its order and this property is taken subject to such outstanding indebtedness.'

By mistake of the scrivener the hotel property was described as Lot No. 3 in Block 102 of the Plemons Addition to the City of Amarillo instead of its proper description of Lot No. 3 in Block 122 of the Plemons Addition to the City of Amarillo.

It is uncontroverted in the record that appellant was deeply grieved and emotionally upset in the tragic death of her son and daughter-in-law, who had no children of their marriage. Appellee takes the position that appellant, having known him for thirty or more years, turned to him in her sorrow for solace and help. He alleged 'that prior to the time the above deed was executed to him he had rendered valuable services to the cross-defendant, Myrtle B. Sowell Fenn over a period of many years, had been good and considerate to the last aforementioned cross-defendant and had rendered valuable consideration to her.'

Appellant alleged that:

'The said plaintiffs would further show the court that at the time of the execution of the deed to the defendant, Howard E. Boxwell, and as shown in Vol. 708 on pages 515 of the Deed Records of Potter County, Texas, to which reference is made, the said Myrtle B. Sowell Fenn had been severly ill and had been suffering from shock due to the loss of her only son in a tragic automobile wreck and she was required to remain constantly in bed and under the care of a physician; that due to her illness; advanced age and mental incapacity she was not mentally able to understand and comprehend the nature and effect of the deed and the consequences of her act when she signed it, and that such deed was void by reason of such mental incapacity of the grantor at the time she executed the said deed.'

She further alleged, in substance, that the contract executed between the parties of even date with the deed above described was executed under the same conditions, the two constituted one instrument and both are void because of material alterations, by reason of undue influence being exercised over her, and because of mental incapacity of appellant at the time.

The contract between the parties of July 21, 1955, also contained the same mistake of the scrivener in describing the property. In addition to the recitations of kindnesses and helpfulness of appellee to appellant and recognition of his helpfulness to her in various business affairs, he agreed in the contract whereby the hotel property was deeded to him that he would erect for her a private mausoleum in the Llano Cemetery, 'Which mausoleum will be shelved for one entombment, shall be built either out of granite or marble, and shall be constructed out of such materials in a good, workmanlike manner, shall be approximately 6 feet wide, 10 feet long and 12 feet 8 inches high, from ground to roof peak, shall be constructed and completed in the usual and customary manner as such mausoleums are being presently constructed, and which shall, after being so built, bear the inscription of 'Myrtle B. Sowell.' Appellee also agreed, as additional consideration to furnish 'a copper Broadmoor Merit Casket, No. 20-7000, triple sealer, which casket ordinarily sells at retail for between $7,000.00 and $17,000.00' and to furnish at his cost a plot in the cemetery named of sufficient size and dimension to construct and erect the above described mausoleum thereon, the plot to be purchased within 30 days from the date of the contract. The contract further provided appellant was transferring all her right, title and interest in and to all of the furniture and fixtures located in the above property, subject to her right to retain possession and the income and revenues therefrom as long as she lived.

The record shows that before the date of the execution of the deed and contract above described appellee, at his expense had, at appellants' request, taken her to Marlin, where she took the hot baths from July 1 to July 18th, then had gone down and taken her to Dallas where she met with the internal revenue department in an effort to get back some income taxes and penalties she had paid. She later received a refund of approximately $33,000.

The next morning after her return to Amarillo appellant, accompanied by appellee, went to the offices of Monning and Monning, Attorneys. The record indicates that because of some previous unpleasant experience Ben Monning, Sr. had had with appellant he refused to draw any instruments for her until he called in his secretary and questioned her in the presence of the secretary, Ben Monning, Jr. and appellee, with the conversation taken down in shorthand. With respect thereto, the Secretary, Mrs. Mary Ann Alexander testified:

'When you asked me to come into the office and bring my notebook, you told me that you had had some experience with her before and that you wanted to be sure that she did not want to back out of this as she had in some other cases you had had dealings with her or something along that line.'

Mrs. Alexander further testified:

'Q. Now, as the questions were answered in the office, did you take her answer down just as she answered? A. Yes.

'The Court: You mean in shorthand, Mr. Monning?

'Q. In shorthand? A. Yes, in shorthand.

'Q. And then...