Garza v. Garza, 14374

• Decision Date: 14 April 1965
• Docket Number: No. 14374,14374
• Citation: 390 S.W.2d 45
• Parties: Daniel R. GARZA, Appellant, v. Roberto R. GARZA, Individually and as Executor, and Angela R. Garza, Appellees.
• Court: Texas Court of Appeals

Page 45

390 S.W.2d 45

Daniel R. GARZA, Appellant, v. Roberto R. GARZA, Individually and as Executor, and Angela

R. Garza, Appellees.

No. 14374.

Court of Civil Appeals of Texas, San Antonio.

April 14, 1965.

Rehearing Denied May 12, 1965.

Fidencio G. Garza, Jr., Falfurrias, for appellant.

Lloyd, Lloyd, Dean & Ellzey, Alice, for appellees.

BARROW, Justice.

This suit was filed by appellant, Daniel R. Garza, on October 4, 1963, to cancel and hold for naught an order of July 5, 1963, admitting to probate the last will of Ramon G. Garza, deceased, which was executed on August 5, 1959. Appellant, a son of deceased, sought to set the will aside upon the theory of undue influence by testator's other son and daughter, Roberto R. Garza and Angela R. Garza, who were the proponents of the will. The trial court granted proponents' motion for instructed verdict after appellant had rested his case, and entered a take-nothing judgment.

The primary question before this Court is whether the record contains any evidence of probative force to raise an issue of fact that undue influence was exercised by Roberto R. Garza and/or Angela R. Garza in the execution of the will which had been admitted to probate.

Ramon G. Garza died in Brooks County on April 29, 1963, at the age of eighty-two years, and was survived by his three children, Daniel, Roberto and Angela. Under his will proponents, Roberto and Angela, shared his entire estate. Daniel was mentioned in this will as follows: 'I have made no devise or bequest under this will to my son, Daniel R. Garza, because provision has been previously made for him by me.' Testator's wife, Teresa, died intestate in 1953, and in 1955 a partition deed was executed by Ramon and his three children, whereby a specific 75.89 acres was conveyed in fee to Daniel, and the remaining interest in Teresa's property was conveyed by Daniel to Ramon and proponents, jointly.

There is no direct evidence of any undue influence, but appellant urges that there is evidence of circumstances which are sufficient to raise a fact issue of undue influence under the holding in Long v. Long, 133 Tex. 96, 125 S.W.2d 1034. These asserted facts are: (1) the weakness of mind and body of testator because of his age and infirmities; (2) the unnaturalness of testator's will be exclusion of one of his three children; (3) the availability of opportunity for proponents to influence their father; (4) the circumstances surrounding the execution of the will; and (5) proponents' management of testator's business and affairs.

The Supreme Court in Rothermel v. Duncan, 369 S.W. 917 (1963), restated the rules applicable to an assertion of undue influence. The Court said: 'Thus, before a testament may be set aside on the grounds of undue influence the contestant must 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.'

It was further said: 'In the absence of direct evidence all of the circumstances shown or established by the evidence should be considered; and even though none of the circumstances standing alone would be sufficient to show the elements of undue influence, if when considered together they produce a reasonable belief that an influence was exerted that subverted or overpowered the mind of the testator and resulted in the execution of the testament in controversy, the evidence is sufficient to sustain such conclusion. Barksdale v. Dobbins, Tex.Civ.App. (1940), 141 S.W.2d 1035, wr. refused. However, the circumstances relied on as establishing the elements of undue influence must be of a reasonably satisfactory and convincing character, and they must not be equally consistent with the absence of the exercise of such influence. Stewart v. Miller, supra. This is so because a solemn testament executed under the formalities required by law by one mentally capable of executing it should not be set aside upon a bare...