Hassell v. Pruner

• Court: Texas Civil Court of Appeals
• Writing for the Court: PITTS; Jenkins
• Citation: Hassell v. Pruner, 286 S.W.2d 266 (Tex. Ct. App. 1956)
• Decision Date: 09 January 1956
• Docket Number: No. 6553,6553
• Parties: Zella E. HASSELL, Proponent, v. Bertha PRUNER et al., Contestants.

Page 266

286 S.W.2d 266

Zella E. HASSELL, Proponent, v. Bertha PRUNER et al., Contestants.

No. 6553.

Court of Civil Appeals of Texas, Amarillo.

Jan. 9, 1956.

Rehearing Denied Feb. 6, 1956.

Allen & Allen and Boyer & Lemon, Perryton, for appellant.

Roy Sansing, Higgins, Gibson, Ochsner, Harlan, Kinney & Morris, Amerillo, for appellees.

PITTS, Chief Justice.

This is an appeal from a judgment duly entered upon a jury verdict denying the application of proponent, Zella E. Hassell, to have the will of Mrs. Abbie Evans, deceased, admitted to probate. The testatrix, on January 13, 1954, executed the will naming proponent, Zella E. Hassell, the sole beneficiary of personal property set out in the said application as consisting of cash, bonds and stocks of the probable value of $24,000 and likewise naming proponent as independent executrix. Testatrix died at the age of 83 years on July 13, 1954, and three days thereafter proponent filed her application to have the will admitted to probate.

Contestants, Bertha Pruner, a niece of testatrix, and ten other named nieces and nephews of testatrix and Johney Albert, a half-brother of testatrix, as the sole and only heirs at law of testatrix, all being adults, filed their contest of proponent's application to probate the said will alleging, among other things, that testatrix did not possess testamentary capacity to make such will and that such will was procured as a result of undue influence exerted upon testatrix by Zella E. Hassell. The will was admitted to probate by the Ochiltree County court on October 28, 1954, and an appeal was perfected to the district court of the said county where a trial de novo was had before a jury which found that testatrix had testamentary capacity to execute the will but it further found that the will was procured as a result of undue influence exerted upon testatrix, Abbie Evans, by proponent, Zella E. Hassell. Judgment was accordingly entered upon the jury verdict denying the application for probate of the will from which judgment proponent perfected an appeal.

Before the evidence was heard, contestants filed their admissions of facts as provided for in Article 3348, Vernon's Annotated Civil Statutes, except as such may be defeated by pleadings and proof offered, for which proof on the whole contestants assumed the burden of making. By reason of such the trial court permitted the contestants to open and close in adducing the evidence and in making arguments to the jury.

In support of her contentions made upon appeal, proponent asserts that:

'This appeal raises two questions:

'(1) Is there any evidence of undue influence, and if so, is it sufficient to support the jury verdict?

'(2) Did the trial court err in permitting the appellees (contestants) to open and close the evidence and argument to the jury?'

Contestants have joined issues with proponent upon the two questions presented.

In our opinion, the controlling question to be here determined is that of whether or not the jury was justified in finding that the will offered for probate was procured as a result of undue influence being exerted upon Abbie Evans by proponent, Zella E. Hassell. While it is admitted that each case 'involving undue influence must stand on its own bottom' in so far as the facts are concerned, we think the law generally governing such an issue has been clearly stated, with ample authorities in support thereof cited, by this court in the recent case of Truelove v. Truelove, Tex.Civ.App., 266 S.W.2d 491 (writ refused). That case was tried by the same trial court which tried this case. However, in that case the issue of undue influence was a strongly contested issue between the nearest of kin to the testator, while in the case at bar the proponent was in no way related to the testatrix, while the contestants were the nearest of kin to the testatrix. At any rate, we refer to the Truelove case for a consideration of the principal rules of law which govern the controlling question presented here.

In consideration of the first part of proponent's first question propounded concerning whether or not there is any evidence of undue influence, we assert that according to the record presented there is evidence which tends to show the existence of the exercise of undue influence upon testatrix by proponent as will be hereinafter shown. Concerning the remainder of proponent's first question as to the sufficiency of the evidence to support the jury finding of undue influence, the rule has been well stated that if there be sufficient evidence of probative force to support the jury findings, the parties to the suit and the appellate courts are bound thereby. To test the sufficiency of the evidence to determine if it will support the jury finding, we must give credence only to the evidence and circumstances favorable to the finding and disregard all of the evidence to the contrary, indulging every legitimate conclusion which tends to uphold such finding. Truelove v. Truelove, supra; Greenspun v. Greenspun, Tex.Civ.App., 194 S.W.2d 134, affirmed 145 Tex. 374, 198 S.W.2d 82; Barksdale v. Dobbins, Tex.Civ.App., 141 S.W.2d 1035 (writ refused).

Other rules of law govering a proper answer to such an issue as is here presented have been well stated in the following language:

'The existence of undue influence is a question of fact, and from its very nature, like all fraudulent and vicious schemes, hides its features behind masks and operates in dark and secret places and in covert ways, and proof of it must usually be by circumstantial rather than by direct testimony. Those circumstances may be the condition of the testator's mind, his age, weakness, and infirmity, his surroundings and the circumstances attending the execution of the will, the opportunity for the exertion of such influence as would trammel or destroy the exercise of free agency in the disposition of the property, the words and acts of testator and beneficiary, the existence of confidential relations between them, and the injustice, unreasonable and unnatural character, of the will. Rollwagen v. Rollwagen, 63 N.Y. 504; Woodbury v. Woodbury, 141 Mass. 329, 5 N.E. 275, 55 Am.Rep. 479; Bryant v. Pierce, 95 Wis. 331, 70 N.W. 297; In re Barney's Will, 70 Vt. 352, 40 A. 1027; Marx v. McGlynn, 88 N.Y. 357; Smith v. Smith, 60 Wis. 329, 19 N.W. 47.' Holt v. Guerguin, Tex.Civ.App., 156 S.W. 581, 584, affirmed as to the rules here cited, 106 Tex. 185, 163 S.W. 10, 50 L.R.A., N.S., 1136.

The rule of law above quoted has since been consistently cited with approval by our courts in cases such as the one at bar. Particularly was it cited in a case similar to this wherein a will had been admitted to probate in a county court but probate denied in a district court upon a trial de novo when the court used the following language:

"It is generally true that the exercise of undue influence in procuring the execution of a will can only be shown by circumstances. Direct evidence of such fact is rarely ever obtainable * * *.' In determining this question, 'All of the circumstances shown by the evidence should be considered and even though none of the circumstances standing alone would be sufficient to show undue influence, if when considered together they produce in the ordinary mind a reasonable belief that undue influence was exerted in the procurement of the will, they are sufficient to sustain such conclusion.' Mayes v. Mayes, Tex.Civ.App., 159 S.W. 919, 922; Russell v. Bolyes, Tex.Civ.App., 29 S.W.2d 891; Holt v. Guerguin, Tex.Civ.App., 156 S.W. 581.' Barksdale v. Dobbins, Tex.Civ.App., 141 S.W.2d 1035, 1038, writ refused.

In the case of Pullen v. Russ, Tex.Civ.App., 209 S.W.2d 630, 634, this court recognized with approval the following rule:

'It has been held that the opportunity to exert such influence, the age of the testator, his physical condition, the fact he preferred one child over another, and the original testamentary intentions of the deceased are circumstances which, if taken alone, would not necessarily be evidence of undue influence. However, when taken in the same case and when the devise is either unnatural or, to say the least, contrary to the testator's previously announced intentions, such combined facts and circumstances are sufficient to take the issue of undue influence to the jury. Russell v. Boyles, Tex.Civ.App., 29 S.W.2d 891, error dismissed.'

However, in that case this court held that the evidence there presented failed to meet the test required by our courts, but in this case the record reflects a different factual situation.

In the case of Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, a contested will was admitted to probate in the county court but the district court denied the will to probate when the jury found that the testatrix possessed testamentary capacity to execute the will but that the will was procured as a result of undue influence, just as the jury found in the case at bar. The Court of Civil Appeals, 98 S.W.2d 236, reversed and rendered the case in favor of the proponents on the alleged grounds that the evidence was insufficient to support the jury finding of undue influence. A writ of error was granted by the Supreme Court, which held that, taking the case as a whole, there was enough evidence, together with the existing circumstances, to raise a fact issue on the question of undue influence, thus supporting the jury finding and the trial court, and remanded the case to the Court of Civil Appeals with instructions accordingly. The Court of Civil Appeals following the instructions of the Supreme Court, affirmed the judgment of the trial court based on a jury finding of undue influence. 129 S.W.2d 1206, writ dismissed W.O.J. 133 Tex. 623, 138 S.W.2d 798.

The statement of facts is voluminous and that bearing on undue influence is very extended and some of it is cumulative in nature. However, we shall now examine as briefly as possible what we believe to be the most pertinent parts...