Firestone v. Sims

• Decision Date: 09 July 1943
• Docket Number: No. 14536.,14536.
• Citation: 174 S.W.2d 279
• Parties: FIRESTONE v. SIMS et al.
• Court: Texas Court of Appeals

174 S.W.2d 279

FIRESTONE v. SIMS et al.

No. 14536.

Court of Civil Appeals of Texas. Fort Worth.

July 9, 1943.

Rehearing Denied October 1, 1943.

Appeal from District Court, Clay County; Earl P. Hall, Judge.

Consolidated actions between Thomas L. Firestone and Carmen Firestone Sims and others in which certain parties sought to cancel a will and deeds of Mrs. Lucinda Firestone, deceased, on ground of undue influence, and to establish a parol trust as to an undivided interest in part of the land involved. From a judgment cancelling the will and deeds and establishing the parol trust, Thomas Firestone appeals.

Judgment reversed in part.

Houston McMurry, of Henrietta, and Carrigan, Hoffman & Carrigan, of Wichita Falls, for appellant.

Joe H. Cleveland and Donald & Donald, all of Bowie, for appellees Carmen Sims et al.

Boyd Barjenbruch, of Bowie, for appellee Osgood Warren Boger.

O. O. Franklin, of San Angelo, for appellee Mrs. C. W. Firestone.

McDONALD, Chief Justice.

The appeal before us concerns in part an effort to cancel a will, and also two deeds, on the ground of undue influence, and certain other grounds, and also concerns an effort made by one of the parties to the litigation to establish a parol trust as to an undivided interest in a part of the land involved. Certain other issues were involved in the trial court, but the issues have been narrowed on the appeal to those mentioned. Three causes were consolidated and tried as one. The transcript contains 139 pages and the statement of facts contains 617 pages. An opinion of considerable length will be required to analyze the testimony, and to discuss the applicable rules of law. We shall first describe the general background of the case, and then shall consider separately the two main issues presented by the appeal.

On and prior to February 23, 1937, Mrs. Lucinda Firestone, a widow, owned certain real estate in Clay County, Texas, including one-half of the minerals in a 200 acre tract of land. This mineral interest became valuable enough that an oil and gas lease was sold by Mrs. Firestone in 1938 for the sum of $7,500 in cash and an additional $7,500 to be paid out of oil, if and when produced. Oil has since been produced from the land, but the testimony does not show the amount, nor does it show the present value of the royalty interest.

On February 23, 1937, Mrs. Firestone, who had for many years lived in Henrietta, Texas, and who was then past seventy years of age, executed the will now under attack, by the terms of which all of her property is left to the appellant Tom Firestone one of her sons. On September 5th, 1938, Mrs. Firestone executed two deeds which by their terms convey to Tom Firestone the real estate above mentioned. Mrs. Firestone died on October 18, 1939. Shortly thereafter Tom Firestone offered his mother's will for probate. Some of the heirs contested the probate of the will. The County Court of Clay County ordered the will probated, whereupon the contestants appealed to the District Court of Clay County. The same persons who contested the will also filed a suit in the District Court of Clay County, seeking to cancel the two deeds mentioned. Also, there was filed a suit by Mrs. C. W. Firestone to establish a parol trust as to an interest in some of the land. Eventually the two suits which had been filed originally in the District Court, and the appeal taken to the District Court in the probate proceeding, were consolidated, they were tried as one suit, and a single judgment was entered. Tom Firestone, the judgment having been adverse to him, has appealed. No complaint has been made by any party of the fact that the three causes were consolidated, and we shall not here undertake to determine whether it is permissible under our practice to consolidate causes of the kind described.

Mrs. Firestone's husband had died some time before the above will was executed, leaving all of his estate to his widow. They had five children, who were, C. W., Harry, John, and Tom, and Helen, who married W. A. Boger. C. W., who was also known as Pat, died after the institution of the litigation, but before the trial, leaving no children. His widow, Mrs. C. W. Firestone, seeks to establish the parol trust above mentioned. Harry Firestone died in 1919, being survived by his widow and seven children. His two sons, John and Lewis Firestone, filed disclaimers in favor of Tom Firestone. His daughters, Mrs. Carmen Sims and four others, and his widow, are the parties who contest the will and who seek to cancel the two deeds. John and C. W. Firestone, the sons of J. H. and Lucinda Firestone, also filed disclaimers in favor of Tom. Helen Boger and her husband W. A. Boger had four children, who will be referred to as the Boger children. Mrs. Boger died in 1930, and her husband was declared insane in 1933. The Boger children were made parties to the litigation, and were adjudged to have an interest in the land and property involved. Tom was adjudged, by reason of the terms of the disclaimer filed by John and C. W. Firestone, and by John and Lewis, the sons of Harry Firestone, to own the interests which would otherwise have been adjudged to them. The controversy upon the appeal therefore lies between Tom, on the one hand, and Carmen Sims and her sisters and the Boger children, on the other, on the issue of the validity of the will and deeds, and between Mrs. C. W. Firestone, on the one hand, and Tom. Mrs. Carmen Sims and her sisters and the Boger children, on the other, on the issue of the parol trust. Harry Firestone's widow was adjudged to have no interest in the property, and has not appealed. W. A. Boger was made a party, was adjudged to have no interest, and has not appealed. W. A. Boger, as an insane person, and the Boger children, as minors, were properly represented in the litigation.

The pleadings are sufficient to put in issue the validity of the will and deeds, the title to the land, and the claim of Mrs. C. W. Firestone as to the parol trust. By a stipulation, all issues relating to accounting for money received by Mrs. Lucinda Firestone or by Tom were severed and agreed to be settled in a subsequent trial.

We shall first take up the attack made upon the will and the two deeds.

The jury found that Mrs. Firestone executed the will and the two deeds; that she was of sound mind upon both occasions; that the deeds were delivered to Tom; and that Mrs. Firestone executed the will and deeds by reason of undue influence exercised by Tom. Upon the latter finding of the jury the court rendered judgment cancelling the will and the deeds.

Under his first point of error Tom contends that there is no competent evidence showing that Mrs. Firestone executed the will and deeds as the result of undue influence exercised by Tom, and with his contention we agree.

As is said by Justice Critz in Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, repeating in substance what he had said in Besteiro v. Besteiro, Tex.Com.App., 65 S.W.2d 759, it is impossible to lay down any hard and fast rule which will govern accurately the question as to whether a given record contains affirmative evidence of undue influence. Every case is different from every other case, and must depend largely on its own facts and circumstances.

In determining whether there are any facts to support the judgment of the trial court, the record should be viewed in its most favorable light to support the same (Besteiro v. Besteiro, supra), and this we shall endeavor to do.

In the year 1936, or before, Mrs. Firestone became afflicted with a cancerous ailment, and at or about the same time fell and suffered a fracture of the hip. It also appears that she suffered from neuritis. Her ailments caused her a great deal of suffering. The physicians attending her were of opinion that operative remedies would not be of any avail, and that the best that could be done for her would be to relieve the pain by administering morphine. She became a morphine addict, and received as much as four thousand quarter-grain doses of the drug from then until the date of her death. One of the physicians taught Tom how to administer the drug to her, and much of the time Tom performed that duty. There was testimony to the effect that such an amount of drugs would cause a person of her age and condition of health to become of unsound mind, but the jury, as has been stated, found that she was of sound mind, and the finding is supported by the testimony of numerous witnesses. After her fall, she was not able to walk without assistance, and spent much of her time in a wheel chair. She lost much weight, and without doubt was in a condition of poor health.

Tom, a man nearing fifty years of age, and single, quit his employment as a member of the fire department at Henrietta, in 1936, and devoted practically all of his time to caring for his mother. He may have done a few odd jobs after 1936. During some of the time a woman would be employed to assist with the housework, but during most of the time Tom cooked the meals, kept the house, waited upon his mother, gave her the injections of morphine, lifted her into and out of the bath, carried her to the automobile when she was taken anywhere in it, and assisted her to some extent in the handling of her affairs. A considerable number of checks drawn upon Mrs. Firestone's bank account were introduced in evidence. All of them were signed in the name of Mrs. Firestone, by Tom. It is only fair to say that no charge is made that Tom misappropriated any of the money. Tom also helped to take care of the Boger children. Mrs. Boger, it has been mentioned, died in 1930. Either then, or not long thereafter, the Boger children were taken into Mrs. Firestone's home, and were cared for by her and Tom, with some of the other relatives assisting to some extent. In 1937, as well as we can ascertain from the evidence, three of the four children were sent to an orphanage. In 1938, not long after Mrs....