Green v. Dickson

• Citation: 208 S.W.2d 119
• Decision Date: 08 January 1948
• Docket Number: No. 11938.,11938.
• Parties: GREEN et al. v. DICKSON et al.
• Court: Court of Appeals of Texas

Page 119

208 S.W.2d 119

GREEN et al. v. DICKSON et al.

No. 11938.

Court of Civil Appeals of Texas. Galveston.

January 8, 1948.

Rehearing Denied February 5, 1948.

Appeal from District Court, Lavaca County; Lester Holt, Judge.

Action by E. L. Klett to determine which of the two wills of Mrs. Julia C. Green, deceased, one of which was executed in 1938 and the other which was executed in 1945, was executed while deceased had testamentary capacity and was free from undue influence, wherein Raymond Dickson filed an application for the probate of the 1945 will, and wherein William Dickson Green, Jr., a minor, appeared by next friend and filed a contest of the application to probate the 1945 will. The 1945 will and codicil thereto were admitted to probate by the county court, and the contestants appealed to the district court. Thereafter Mrs. Miriam Green filed in the action a suggestion of the death of William Dickson Green, Jr., and prayed that she be made a party contesting the application for probate of the 1945 will and codicil. From the judgment that the 1945 will and codicil were valid, Mrs. Miriam Green and others appeal.

Judgment affirmed.

Wm. H. Duls, of Dallas, Paul Boethel and Fertsch & Fertsch, all of Hallettsville, J. W. Ragsdale, of Victoria, Warren J. Collins, of Dallas, E. L. Klett, Executor, and Klett, Bean, Evans & Justice, all of Lubbock, for appellants.

Alton C. Allen and Walter W. Allen, both of Hallettsville, James N. Erwin and Dillon Anderson, both of Houston (Allen & Allen, of Hallettsville, and Baker, Botts, Andrews & Parish, of Houston, of counsel), for appellees.

MONTEITH, Chief Justice.

This action was brought in the probate court of Lavaca County by contestant E. L. Klett for the alleged purpose of determining which of the two wills of Mrs. Julia C. Green had been executed while she had testamentary capacity and was free of undue influence. He alleged that he had been appointed independent executor and trustee under two sets of wills executed by Mrs. Julia C. Green, deceased, one on October 5, 1938, which will be referred to in this opinion as "the 1938 will", and another on September 11, 1945, which will be referred to herein as "the 1945 will", and that by reason of the advanced years of decedent and her declining mentality, a question had arisen as to whether the decedent was of sound mind and free from undue influence in the disposition of her property at the time of the execution of "the 1945 will" and the codicil thereto.

On July 11, 1946, Raymond Dickson filed an application in said action for the probate of the 1945 will.

On July 31, 1946, William Dickson Green, Jr., a minor, appeared therein by next friend and filed a contest of the application to probate the 1945 will.

On August 2, 1946, the will of September 11, 1945, and the codicil thereto were admitted to probate by the County Court of Lavaca County, from which action contestants appealed to the District Court.

On September 20, 1946, Mrs. Miriam Green filed in said action a suggestion of the death of William Dickson Green, Jr. She alleged that he had left no surviving heirs, and that she was his mother, and interested in his estate under Article 3315, Revised Civil Statutes. She prayed that she be made a party contesting the application for the probate of the 1945 will and codicil, and that those provisions of said will under which Mrs. Green had devised certain land and the remainder of her estate to Raymond Dickson in the event of the death of William Dickson Green, Jr., without issue, be not probated because of alleged undue influence and lack of testamentary capacity of the testatrix at the time of its execution. Raymond Dickson filed a motion to require Mrs. Miriam Green to show herself entitled to prosecute this contest.

At the conclusion of the evidence by all parties, the trial court instructed the jury to return a verdict probating the 1945 will and codicil and rendered judgment accordingly.

The controlling questions presented on the appeal are whether the testimony relied upon by contestants raised the issue of a lack of the testamentary capacity of the testatrix at the time of the execution of the 1945 will, and whether undue influence was brought to bear upon her at the time of the execution of the will.

Appellants complain of the alleged error of the trial court in instructing a verdict admitting the 1945 will to probate for the alleged reason that there was sufficient and competent evidence of probative force adduced on the trial of the cause to raise both the issue of the testamentary capacity of Mrs. Green at the time of the execution of the 1945 will, and the issue that the execution of said will was procured by undue influence.

Mrs. Julia C. Green was the surviving wife of William Green, who died in 1927. She was 82 years of age at the time of her death. There was born to Mrs. Green and William Green only one child, William Dickson Green, the husband of the contestant Miriam Green, who died in April, 1945, prior to the death of his mother. William Dickson Green and Miriam Green had only one child, William Dickson Green, Jr., who died on August 12, 1946, approximately two and one-half months after the death of Mrs. Julia C. Green. Raymond Dickson, proponent of the 1945 will, is the son of Mrs. Julia C. Green's deceased brother, Hamilton Dickson. When he was a child he lived in Mrs. Green's home after the death of his parents. There was a close personal relationship between him and his aunt.

The 920 acres of land devised by Mrs. Green to Raymond Dickson under the 1945 will was Mrs. Green's separate property. It had been acquired by her by either gift, devise or descent from her parents, and was called by her "the Dickson lands."

Under "the 1938 will" Mrs. Julia C. Green bequeathed to her son, William Dickson Green, a trust estate of $25,000, the income from which was to be used by him for the benefit of her grandson, William Dickson Green, Jr., until he became 25 years of age.

The will provided that if William Dickson Green, Jr., died before reaching the age of 25 years, leaving a child or children surviving him, the principal of the trust estate should go to the surviving child or children, but that, if he died before reaching the age of 25 years without leaving bodily descendants, all properties belonging to said trust estate should revert to and become part of the residue of decedent's estate, which was devised to her son, William Dickson Green, in fee simple. The will provided that if her son, William Dickson Green, died before the decedent, the balance of her estate would revert to the trust estate in favor of William Dickson Green, Jr.

By codicil to said 1938 will, of January 11, 1941, the life of the trust estate in favor of William Dickson Green, Jr., was extended until he reached 30 years of age. By codicil executed August 30, 1941, E. L. Klett was appointed successor trustee, and by codicil to said will of August 3, 1945, E. L. Klett was made executor and trustee of the will, and H. W. Wallace was appointed as successor in the event of his death, resignation, or failure to qualify.

By counter-points appellees contend the record shows that they have shown by clear, positive and affirmative evidence Mrs. Green executed the will of September 11, 1945, and codicil thereto with due legal fidelity; that she was a person of sound mind at all times material to its execution, and that contestants have failed, as a matter of law, to offer sufficient evidence to raise fact issues as to her testamentary capacity or that undue influence was brought to bear upon her at the time of the execution of the 1945 will.

By cross-points they contend that the trial court erred in admitting in evidence the opinions of Dr. Goodson and Dr. Hauser who, in answer to hypothetical questions and over their objections that the facts upon which the questions were based were not sufficient to warrant a conclusion of lack of testamentary capacity, and that the hypothetical questions failed to submit a complete, accurate or fair summation of the facts in evidence and that, therefore, the answers to said questions failed, as a matter of law, to raise a fact issue as to the lack of testamentary capacity and the exercise of undue influence upon the testatrix.

It is undisputed that prior to the execution of the 1945 will Mrs. Green wrote Raymond Dickson at Houston asking him to tell her family lawyer, H. W. Wallace of Cuero, Texas, that she wanted to discuss matters pertaining to her will with him. In August, 1945, Mr. Wallace called on Mrs. Green at her home in Shiner in response to a call from her maid. He testified that, at that time, she discussed with him the preparation of a new will and the final disposition of her estate; that she told him that, in the event her grandson, William Dickson Green, Jr., died leaving no descendants, she wanted the property devised to him in a trust estate in the 1938 will to go to some member of the Dickson family.

At Mrs. Green's request and under her instruction, Mr. Wallace prepared the September 11, 1945, will. In this will Mrs. Green made three specific legacies — a legacy of $5,000 to her niece, one of $10,000 to her friends Mr. and Mrs. Hughes, and a third to her nephew, Raymond Dickson. She bequeathed all the rest and residue of her estate to her grandson, William Dickson Green, Jr., in a trust which was to be paid to him when he reached the age of 35 years; that, at the termination of the trust, the corpus of the estate should be turned over to William Dickson Green, Jr., if living, and if not living, then to his child or children, in fee; that if he should die before the termination of the trust, leaving no child or children, the rest and residue of her estate should go to her relatives; $5,000 each to her niece and two nephews, if living, and the balance of her estate should go to Raymond Dickson, if living, and if he was deceased, then to his descendants, or...