Hall v. Hall, 13806

• Decision Date: 04 January 1962
• Docket Number: No. 13806,13806
• Citation: 352 S.W.2d 765
• Parties: Lewis T. HALL, Appellant, v. Bailey C. HALL, Individually and as Independent Executor of the Will of Alice Josephine Hall, Deceased, Appellee.
• Court: Texas Court of Appeals

Page 765

352 S.W.2d 765

Lewis T. HALL, Appellant, v. Bailey C. HALL, Individually and as Independent Executor of the Will of Alice Josephine Hall, Deceased, Appellee.

No. 13806.

Court of Civil Appeals of Texas, Houston.

Jan. 4, 1962.

A. C. Goodson, Houston, for appellant.

Dyess, Dyess, Prewett & Cantey, William R. Powell, A. D. Dyess, Jr., Houston, for appellee.

WERLEIN, Justice.

Appellant, Lewis T. Hall, sued Bailey C. Hall, Individually and as Independent Executor of the Estate of Alice Josephine Hall, Deceased, to recover on a $16,000.00 check dated November 15, 1955, allegedly signed by the decedent. The case was tried before the court without a jury, and judgment was rendered that appellant take nothing.

By his First Point appellant contends that appellee's affidavit does not conform to Rule 93(h), Texas Rules of Civil Procedure, and is insufficient to put in issue the execution and delivery of the check in question. The pertinent part of Rule 93(h) reads:

'Where such instrument in writing is charged to have been executed by a person then deceased, the affidavit shall be sufficient if it state that the affiant has reason to believe and does believe that such instrument was not executed by the decedent or by his authority. In the absence of such a sworn plea, the instrument shall be received in evidence as fully proved.'

The affidavit of appellee's attorney states that he has read the foregoing answer and that all matters therein stated are true and correct. Appellee's answer alleges with respect to the execution of the instrument:

'Your defendant specially denies the execution by ALICE JOSEPHINE HALL of the instrument sued upon because the said ALICE JOSEPHINE HALL is dead and this defendant has no manner of ascertaining whether ALICE JOSEPHINE HALL did or did not execute the same in whole or in part and knows not whether the signature thereon is or is not genuine.'

We think the foregoing allegation is insufficient to meet the requirements of Rule 93(h). It is further our view, however, that appellant has waived strict compliance with Rule 93(h) by not pointing out by motion or exception in writing the defect or fault and bringing it to the attention of the judge of the trial court before the rendition of judgment. Rule 90, Texas Rules of Civil Procedure. Furthermore, the Point presents no reversible error since the check was admitted in evidence by the court for all purposes.

Appellant next contends that the court erred in not rendering judgment for him, because there is no evidence amounting to a legal defense to the check in question. Appellee in his verified answer put in issue, in addition ot the matter of execution and delivery of the check: (1) mental incapacity, (2) undue influence, duress and fraud, (3) material alteration, (4) failure of consideration in whole or part, (5) no consideration, (6) the two and four year statutes of limitation, and (7) the statute of frauds. Since no findings of fact or conclusions of law were requested or filed, the trial court's judgment implies all necessary fact findings in support thereof. In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto, 'it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.' Renfro Drug Co. v. Lewis, 1950, 149 Tex. 507, 235 S.W.2d 609; Kirksey v. Warren, Tex.Civ.App.1961, 348 S.W.2d 33.

The issue as to whether the decedent did or did not have mental capacity is to be determined as of the time of the execution of the instrument. Payne v. Chance, Tex.Civ.App.1928, 4 S.W.2d 328; Venner v. Layton, Tex.Civ.App.1951, 244 S.W.2d 852, ref., n. r. e.; Smith v. Welch, Tex.Civ.App.1955, 285 S.W.2d 823, ref. n. r. e. The foregoing cases involve the execution of wills, but ordinarily less capacity is required to enable one to make a will than to enter into a contract. The following statement is quoted from 24-A Tex.Jur., p. 483, Sec. 18:

'In any proceeding involving the question of mental condition, the proof must be directed to the condition as it existed at a particular time, but such mental condition may be proved by evidence of the state of the person's mind at other--and especially at prior--times. Considering the remoteness of the time to which the investigation may reach, it has been said that it is impossible to fix a general limit that will control in all cases. The question, however, seems to be one of degree only. the further off the evidence is carried, the weaker it may be, but it is still evidence and should be considered.'

See Fulcher v. Young, Tex.Civ.App.1945, 189 S.W.2d 28, ref., w. m.

The law indulges a disputable presumption of sanity, and casts on the party who alleges mental incapacity the burden of proving his contention. 24-A Tex.Jur., p. 479, Sec. 15. It is necessary, therefore, to determine whether there was any evidence adduced at the trial to overcome such presumption and upon which the court could base a finding that the deceased was in such mental condition that she lacked contractual capacity on November 15, 1955, when the check in question was allegedly signed by her.

Dr. D. J. Wible, who visited and treated the deceased frequently in 1953, and less often in 1954 and 1955, and who saw her as late as July, 1955, testified that she was in an advanced stage of senility in 1954 and even in a more advanced stage of senility in 1955, right on to 1958 when she expired. He was asked specifically as to her ability to understand the nature of business transactions as of November 15, 1955, and testified that she was in pretty bad shape and that he did not think she was mentally capable of conducting her own business affairs. On cross-examination he testified that the deceased was in bad shape every time he visited her and that sometimes she was certainly incapable of writing a check.

William L. Hall, brother of the defendant, testified that he had been married since 1923 and that the deceased, who was his mother, knew his wife by sight prior to 1953, but in 1953, when he visited the deceased, she didn't recognize her daughter-in-law; that he knew his mother was getting worse from 1953 to 1955, and that in November , 1955 she did not have the mental capacity to understand the nature of business transactions and carry on business for hereself; and that he would not trust her with any of his business.

Mrs. William L. Hall testified that she married Mr. Hall in 1923, and came to know his mother well in the years she was in the family; that during the years of 1...