Gumm v. Chalmers, 10754.

• Decision Date: 13 April 1939
• Docket Number: No. 10754.,10754.
• Citation: 127 S.W.2d 942
• Parties: GUMM v. CHALMERS et al.
• Court: Texas Court of Appeals

Page 942

127 S.W.2d 942

GUMM v. CHALMERS et al.

No. 10754.

Court of Civil Appeals of Texas. Galveston.

April 13, 1939.

Rehearing Denied May 4, 1939.

Error from District Court, Harris County; Norman Atkinson, Judge.

Proceeding by Charles A. Gumm against Walter Chalmers and others for the contest of the will of Fred Erichson, deceased, wherein others intervened as contestants. To review a judgment entered non obstante veredicto dismissing the contest, the named contestant brings error.

Reversed and remanded with directions.

Taliaferro & Graves and Louis W. Graves, Jr., all of Houston, for plaintiff in error.

W. P. Hamblen and Ernest A. Knipp, both of Houston, for defendants in error Walter Chalmers and Tom A. Graham.

GRAVES, Justice.

This appeal, by writ of error, is from a judgment of the 11th District Court of Harris County, entered non obstante veredicto, on motion of defendants in error therefor, dismissing the contest of plaintiff in error to the will of Fred Erichson, deceased (who, as contestant, was joined by certain non-appealing intervenors in the trial court); such contest had theretofore been sustained in the County Court of Harris County, and had been appealed to the District Court by defendants in error, who were the proponents of the will.

In the District Court the issues of fact raised between the parties to the contest were submitted in this single special-issue to the jury, which it answered, "he did not," to-wit: "Did or did not Fred Erichson have testamentary capacity on July 16th, 1934, at the time he executed the will in controversy? You will answer this special Issue `He did' or `He did not', as you find the facts to be."

The learned trial court recited that it was of the opinion—in the light of the motion of the defendants in error for such decree—that a directed verdict in their favor would have been proper; a reference to the motion itself shows that it was grounded upon two counts only, as follows: (1) That the verdict was unsupported by the evidence; (2) that the contestants had failed to show any interest in the estate.

The effect of this order of dismissal was to permit the probate of the will, thereby nullifying the prior order of the county court denying its probate, as well as this verdict of the jury on the appeal to the District Court, finding that Fred Erichson had not had testamentary capacity when he executed the will in question on July 16th of 1934.

In this court plaintiff in error, carrying alone the burden of the appeal, contends the trial court's action in so dismissing his contest, notwithstanding the jury's verdict, was fundamental error, for the principal reasons that:

(1) His pleading and evidence was not only sufficient to raise the issue of a lack of testamentary capacity upon Erichson's part at the time of executing the will, but also to support the jury's verdict that he did not have that indispensable requisite to the making of a valid will.

(2) The finding of the jury determining that he did not have such capacity at the time, under the circumstances, required the sustaining of the contest, even if the proof failed to show—as defendants in error contend —that the contestant and intervenors below were parties interested in Erichson's estate;

(3) That there was both pleading and evidence sufficient to support an issue of such interest on the part of the contestants below, it having been undisputedly shown by them that the testator left neither surviving wife, nor children, but did leave nieces and nephews, to which class of relationships the plaintiff in error along with one or more of the intervenors belonged.

(4) That the defendants in error were in no position upon the trial to raise any question as to whether or not plaintiff in error and such intervenors were so interested in the estate of the deceased, because they neither by sworn affidavit, plea in abatement, exception, nor otherwise, in due order of pleading, and in limine, upon the trial below, in any way properly raised any question as to the right of their opponents to so contest the probate of the will.

This court concludes that, regardless of the procedural questions discussed in the briefs, the showing made below under neither premise for the challenged judgment was sufficient; that is, the pleadings and evidence were at least sufficient to raise the issues both of mental competency as submitted to and determined by the jury, and of interests in contestants in Erichson's estate, within the meaning of R.S. Article 3433.

(1) Under R.S. Article 2211, Vernon's Ann.Civ.St. art. 2211, pursuant to which the action under review was taken, providing that the court may render judgment non obstante veredicto if a directed verdict would have been proper, if there is any pleading and any testimony supporting an issue, no authority for such directed verdict exists, as is thus declared by this court through Justice Cody, in Johnson v. Moody, Tex.Civ.App., 104 S.W.2d 583, at page 586: "When judgment notwithstanding the verdict is rendered, it should be made to appear, not that the evidence is insufficient to support the findings of the jury, but that the evidence was insufficient to raise the issue, or warrant their submission to the jury."

When the evidence on that feature in this record is appraised accordingly, it seems plain that an issue of fact over whether or not the deceased Erichson had the necessary capacity at the date of the will, July 16th of 1934, was raised; he died October 21st thereafter, and there were many witnesses familiar with his condition immediately before, at the time of, and after the execution of the will, up until the time of his death, who testified to facts and circumstances from which it was a...