Hardwick's Estate, In re

• Decision Date: 18 October 1954
• Docket Number: No. 6434,6434
• Citation: 278 S.W.2d 258
• Parties: In re The ESTATE of Sam HARDWICK, Deceased.
• Court: Texas Court of Appeals

Page 258

278 S.W.2d 258

In re The ESTATE of Sam HARDWICK, Deceased.

No. 6434.

Court of Civil Appeals of Texas, Amarillo.

Oct. 18, 1954.

Rehearing Denied Nov. 15, 1954.

Crenshaw & Griffith, Lubbock, Chester A. Oehler and Charles W. Tessmer, Dallas, for appellant.

Klett, Bean & Evans, Lubbock, for appellee.

PITTS, Chief Justice.

This is an appeal from a judgment admitting to probate the last will and codicil thereto of Sam Hardwick, deceased, upon the application of proponent Harold Shoulders, a grandnephew of deceased, named as a beneficiary and independent executor thereof, joined also by proponents Abilene Christian College, Tipton Oklahoma Orphans' Home, Boles Orphans' Home and Sunny Glen Orphans' Home, each named as a beneficiary therein. Contestants are Mrs. Zannie Hardwick Hays, a surviving sister of testator, and several other named legal heirs next of kin of testator, all being sisters or children of pre-deceased brothers and sisters of the deceased testator.

The testator executed the said will on September 19, 1951, and added the codicil thereto on January 26, 1952, without making any material change in the will insofar as the issues here raised are concerned. He died on July 19, 1953, at the age of 78. His will, together with the codicil, was thereafter amditted to probate in the county court of Lubbock County, after a hearing was there had on a contest between the same parties heretofore named or designated. The grounds for contest of the will there presented by contestants were that the testator was not of sound mind or memory when he executed the will and that he was unduly influenced therein by Harold Shoulders, Rev. M. Norvel Young and B. Sherrod, acting for themselves and the proponents previously herein named. An appeal was thereafter perfected to the district court where contestants filed amended pleadings challenging the validity of the will for the alleged reasons that testator was incapable and did not have sufficient testamentary capacity to make a will, and that he was unduly influenced therein by the same persons previously herein named, as well as by Robert H. Bean, an attorney for proponents and the attorney who drew the will and codicil for testator. A hearing was there had to a jury which found that testator was of sound mind when he executed the will and also when he executed the codicil thereto. Judgment was accordingly rendered admitting the will be probate from which an appeal has been perfected.

Contestants have presented 41 points of error, some of which are legthy. In our opinion, the controlling issues to be here determined are whether or not testator was mentally capable of making a will and whether or not he was unduly influenced by either of the parties herein named when he executed the same. We therefore do not find it necessary to prolong this opinion by discussing separately the 41 points presented, some of which only present evidentiary matters not considered material by us.

The record does not reveal the actual value of testator's estate but it appears to be worth from $300,000 to $500,000, consisting mostly of land and royalties with some personal property. The record further reveals that testator never had any children of his own. His first wife died in 1922, and he was thereafter married again in 1924, but was divorced from his second wife, Mrs. Florence Hardwick, in 1944. She is still living but was not a party to this suit. The record likewise reveals that the only change made by testator in the codicil to his will was that he changed the bequest made to the Board of Trustees of Abilene Christian College to Abilene Christian College, leaving off the Board of Trustees. Such was done for the convenience of the institution in handling the bequest at the proper time and such a change was voluntarily made by testator after his attention had been called to the matter by one of the Board members who had been apprised of the provisions of the will. The record also reveals that Rev. M. Norvel Young was Minister of the Church of Christ of Lubbock, of which testator was a member, and that he was also a member of the Board of Trustees of Abilene Christian College and that B. Sherrod was also a member of the said Church and a member of the Board of Trustees of Abilene Christian College.

Contestants complain first because the trial court refused to submit the issue of undue influence to the jury. It is conceded that proponents had the burden of proving that testator had mental capacity to execute the will and codicil and they contend such burden has been discharged and the jury so found. It was held in the case of Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, that in a will case such as this, after mental capacity has been shown, the burden of proving undue influence rests upon the party contesting the probate of the will on such grounds. The court there further held that, generally, undue influence will not vitiate a will unless such influence was exerted at the time, under the facts and circumstances, so as to destroy testator's free agency and substitute therefor this influence of another which produced a will that testator did not desire to make. The court likewise there held that undue influence in its essential elements has no real relation to mental incapacity, since they constitute two distinct grounds for avoiding a will. One implies the lack of intelligent mental power while the other implies the existence of a mind of sufficient mental capacity to make a will, if not hindered and dominated by the influence of another. It is conceded, however, that a mind, though not unsound, may be so weak as to yield to undue influence of another if other essential elements of undue influence are satisfactorily shown in connection therewith. In connection with the issue of mental capacity the court further held in the Long case that a person of sufficient mental capacity may devise his property by will as he may see fit, so long as he transgresses no law in so doing and he is under no obligation to devise his property according to the laws of descent and distribution or according to any moral law; to ignore such laws is no grounds for setting aside his will. However, if testator has left a will that is unnatural in its terms and makes an inexcusable difference in those who ought to stand equal in his bounty, such may be considered along with other facts and circumstances in determining the question of undue influence. The Long case has since been consistently cited and the rules there announced uniformly followed.

The Long case was cited by the court in the case of Olds v. Traylor, Tex.Civ.App., 180 S.W.2d 511, 516 (writ refused), which court said in part:

'The issue of undue influence is not raised unless the record contains some admissible evidence of probative force that such influence was exercised, and that it subverted and overpowered the will of testator and caused the execution by him of a will which he would not have executed but for such influence. Stewart v. Miller, Tex.Civ.App., 271 S.W. 311, pt. at page 316, writ refused; Rankin v. Rankin, 105 Tex. 451, 456, 151 S.W. 527.'

When these and all other rules concerning undue influence are applied to the evidence presented in this action, it clearly appears that an issue of the exercise of undue influence upon the testator as alleged was not raised by the evidence. On the contrary, the overwhelming wight of the evidence reveals that testator had accumulated a large estate, looked after his own business affairs, was a man of strong convictions, knew what disposition he wanted to make of his property, had his will and the codicil dispose of his property according to his own wishes, and that he had reasonably good health for a man of his age at the time he executed the will and codicil. Contestants therefore failed to discharge the burden of proof on undue influence as pleaded by them or to raise an issue concerning such, and the trial court property refused to submit an issue concerning such to the jury. In re Caruthers' Estate, Tex.Civ.App., 151 S.W.2d 946; Cameron v. Houston Land & Trust Co., Tex.Civ.App., 175 S.W.2d 468; Gainer v....