Gray v. Bird, 38

• Decision Date: 18 June 1964
• Docket Number: No. 38,38
• Citation: 380 S.W.2d 908
• Parties: W. E. GRAY et al., Appellants, v. Jimmy BIRD et al., Appellees.
• Court: Texas Court of Appeals

Page 908

380 S.W.2d 908

W. E. GRAY et al., Appellants, v. Jimmy BIRD et al., Appellees.

No. 38.

Court of Civil Appeals of Texas, Tyler.

June 18, 1964.

Rehearing Denied July 16, 1964.

A. J. Thompson, Thompson & Stripling, Nacogdoches, Luther C. Johnston, Palestine, for appellants.

Swaim & Swaim, Eden, B. R. Reeves, John B. McDonald, Palestine, Thomas Black, Black & Stayton, Austin, for appellees.

MOORE, Justice.

This is a plenary or independent suit originally brought in the County Court of Anderson County to set aside a judgment of that court theretofore entered probating the will of Cora E. Strong. Under the terms of the will, Cora E. Strong, bequeathed all of her property to her six living brothers and sisters, to-wit: Flora Gray Day, Emma Gray Rhodes, W. E. Gray, Pearl Elliott, Iva May Bishop and B. F. Gray, share and share alike, and further provided that should either of her brothers or sisters predecease her that their share would not lapse but would pass to their descendants. Testatrix had two other sisters, who died many years before the execution of the will. The surviving children of these two sisters are the plaintiffs in this suit. Plaintiffs, Jimmy Bird and Mary K. Beach, are the surviving children of testatrix's sister, Henrietta Gray Bird, who died in 1939, and plaintiff, Emsy Lorinne Long, is the surviving child of testatrix's sister, Lorinne Gray Swain, who died in 1921. Defendants are the six living brothers and sisters of testatrix, named above. Plaintiffs allege lack of testamentary capacity and undue influence as grounds for contesting the validity of the will. After a hearing, the County Court entered judgment upholding the validity of the will. Thereupon, plaintiffs duly perfected their appeal to the District Court of Anderson County, Texas, and, after a hearing the court sitting without a jury entered judgment setting aside the probate of the will because of the lack of testamentary capacity. The defendants duly excepted to the judgment of the court and have perfected this appeal.

The records show that the will was executed on the 19th day of February, 1953, and that Cora E. Strong died on the 21st day of March, 1959, approximately six years after the execution of the will, at the age of 76 years.

The record in this case is voluminous. The statement of facts, consisting of 672 pages, contains the testimony of eight lay witnesses and two medical witnesses called by plaintiffs, as well as the testimony of sixteen lay witnesses called by the defendants. Practically all of the testimony relates to the testamentary capacity of the testatrix. No useful purpose would be served in reviewing the testimony of each witness individually. A cumulative summary of the testimony of the lay witnesses introduced by the plaintiffs shows that prior to the year 1945 Mrs. Strong was a very active woman in both business and social affairs and was in every respect a brilliant lady; that commencing in about 1945 she began to suffer with lapses of memory; was at times unable to recognize or call the names of some of her closest neighbors and friends; was unable to remember her deceased husband or to remember his name. In conducting her insurance business she attempted to collect premiums from those who had not purchased a policy; she was unable to remember the directions to her home; and was, in the opinion of the witnesses, mentally confused, unable to transact business, and was of unsound mind. Although none of these witnesses purported to have seen testatrix on the day of the execution of the will, the cumulative effect of their testimony shows that such condition existed between the years 1945 until 1954. The testimony of Doctor Fred Felder, a physician in Palestine, Texas called by the plaintiffs, shows that he commenced treating Mrs. Strong in 1945, treating her several times a year thereafter. That she came to him with numerous ailments and complaints of fatigue and nervous tension; that by March, 1950, she had begun to worry about her health to such an extent that he classified her as a hypochondriac. That in March, 1951, she complained of her head; of having a poor memory and not having any mind; that she continued to visit him periodically, complaining of fatigue, mental confusion, and loss of memory; that later that month he sent her to Doctor Titus Harris, a psychiatrist in Galveston, because he had come to suspect arteriolosclerosis, which was affecting her mental condition. That after her return, and after having received a report from Doctor Harris, he concluded that she was affected with an arteriolosclerotic degeneration of the brain which, in his opinion, commenced in 1950; that the effects of such a disease had caused a wasting away of the brain, resulting in a loss of memory; and that the disease was such that it could not be arrested or controlled but progressively grows worse; that in his opinion she was of unsound mind in March, 1951, at the time he sent her to Doctor Harris, and that although he had not seen her since June 18, 1952, he was of the opinion that she continued to be a person of unsound mind until on or about February 19, 1953, the date on which she executed her last will.

The testimony of Doctor Harris was introduced by plaintiffs by way of a deposition, it being the same deposition used in the hearing theretofore conducted before the County Court. He testified that he was a psychiatrist, having practiced such profession since 1919, during which time he had been associated with the University of Texas Medical Branch Hospital in Galveston; that after treating Mrs. Strong from March 28, 1951, to April 4, 1951, he diagnosed her case as cerebral arteriolosclerosis, which is a hardening of the arteries of the brain, causing mental deterioration which, as a general rule, progressively becomes worse; that he found her to be absent minded and to have lapses of memory; that her judgment for the transaction of business had become affected and that in his opinion she was unable to transact any business at that time and he would not expect her to be able to do so in the future and he recommended custodial care.

Plaintiffs introduced the deposition testimony of Doctor B. W. Cochran, it being the same deposition used by the plaintiffs in the hearing before the County Court. He testified that he was a neurosurgeon and psychiatrist in Beaumont, Texas; that he examined and prescribed medication for Mrs. Strong on the 21st of February, 1952, at the request of Doctor Sam Barnes, her physician in Trinity, Texas. He testified that he saw her only one time and diagnosed her case as cerebral arteriolosclerosis; that at that time her judgment and memory was definitely impaired; that she had lapses of memory, difficulty in evaluating time and remembering dates; that her case was advanced and that her ability to transact business was impaired and that 'in lay terms' she could be described as having an unsound mind. He recommended a legal guardian be appointed and that she have custodial care and assistance in handling her business.

A cumulative summary of the testimony of the fifteen lay witnesses introduced by the defendants shows all of them to have been friends and neighbors of Mrs. Strong of many years' standing, some of whom were related to her by blood or marriage; they all testified that they were of the opinion that Mrs. Strong was of sound mind throughout her life. Many of these witnesses testified that they had had business dealings with her through the year 1954 and she seemed to be normal in every respect, driving her automobile, issuing checks upon her bank account to cover her purchases for newspapers, cosmetics, hair dressing, and making donations to the school and church.

The testimony of Ernest Swift, the attorney who prepared the will, a witness called by defendants, shows that he had not known Mrs. Strong or any of her family prior to the time that she came to his office and requested him to prepare the will, that he talked to her about ten or fifteen minutes and she gave him the names of the devisees and instructed him with regard to the preparation of the will; that he did not remember as to whether or not she had the names of the devisees written on a piece of paper or whether he prepared the will while she was in the office or whether he prepared it and instructed her to return later for the execution thereof; that after the will was executed he never saw her thereafter except perhaps on the streets; that at the time she executed the will he was of the opinion that she was of sound mind. Mrs. Bina Bird, one of the witnesses to the will, and a witness introduced by defendants, testified that she did not know Mrs. Strong nor was she related to any member of the family; that when she witnessed the will she was with Mrs. Strong only briefly. In reply to a question propounded by defendants' attorney, she stated that she was not able to say whether or not testatrix was capable of making a will.

For the purpose of showing testamentary capacity defendants introduced nine legal instruments in the nature of deeds and oil and gas leases which were shown to have been executed by testatrix on July 8, 1953, August 27, 1953, January 18, 1954, February 20, 1954, April 29, 1955, and August 26, 1955.

The record reflects that testatrix was declared to be a person of unsound mind by the County Court of Trinity County on April 2, 1956, and that her sister, Pearl Gray Elliott, one of the devisees under the will, was appointed as her guardian.

The record is before us without findings of fact and conclusions of law, although the judgment does reflect that the court found that testatrix was of unsound mind and did not have testamentary capacity.

Appellants' first point complains of the action of the trial court in admitting and considering as evidence the depositions of Doctors Harris and Cochran, contending that such depositions which were used in the trial in the County Court...