Hickman v. Hickman, 2879

• Decision Date: 02 November 1951
• Docket Number: No. 2879,2879
• Citation: 244 S.W.2d 681
• Parties: HICKMAN et al. v. HICKMAN et al.
• Court: Texas Court of Appeals

Page 681

244 S.W.2d 681

HICKMAN et al. v. HICKMAN et al.

No. 2879.

Court of Civil Appeals of Texas, Eastland.

Nov. 2, 1951.

Rehearing Denied Dec. 14, 1951.

Mark McGee, Fort Worth, E. M. Davis, Gib Callaway, Brownwood, for appellants.

COLLINGS, Justice.

This appeal is from a judgment of the District Court denying probate of the will of Hector H. Hickman, deceased, after an appeal from a judgment of the County Court admitting such will to probate upon the application of appellants, Roy N. hickman, Bernal B. Hickman and I. N. Hickman, who were named as independent executors under such will. Contestants of the will are appellees, Mrs. Hazel Hickman, individually and as next friend of Hope Hickman, who are respectively wife and infant child of Hector H. Hickman, deceased. The trial in the District Court was before a jury which found that on August 25, 1948, the date of the execution of the will, the testator, Hector H. Hickman, (1) was not of sound mind, and (2) was not acting under undue influence of Roy N. Hickman, Bernal B. Hickman, I. N. Hickman and Mrs. Ellis, or either of them. Based upon the jury finding that the testator was not of sound mind at the time of the execution of the will, judgment was entered for appellees denying the probate thereof. From such judgment, appellants have duly perfected their appeal.

Appellants' first and second points urge that the verdict of the jury and judgment of the court are unsupported by the evidence; that no witness offered any evidence of probative force 'that Hector H. Hickman was of unsound mind, but that all the witnesses who testified as to his mental condition asserted that his mind was sound.'

Numerous witnesses testified that Hector H. Hickman was of sound mind at the time he executed the will. The jury found, however, that he was not of sound mind at that time and the question for determination is, whether the evidence justifies this finding. In determining this question, we may consider only the testimony favorable to the jury's verdict and must disregard all evidence to the contrary. Chambers v. Winn, 137 Tex. 444, 154 S.W.2d 454; Breeding v. Naler, Tex.Civ.App., 120 S.W.2d 888; Polser v. Polser, Tex.Civ.App., 179 S.W.2d 542, Ref.W.M.

Hector H. Hickman was 44 years of age at the time of his death on November 26, 1948. He was survived by his wife and infant child who are appellees in this case, and was seized and possessed of real estate and personal property of the probable value of $35,000. The purported will which the District Court denied probate was executed by him on August 25, 1948. By the terms of such will, Hector H. Hickman left all of his property to his three brothers who are appellants herein, and left nothing to his wife or child. There were two insurance policies on the life of Hector H. Hickman, one of about $7,500 payable to a brother of deceased and another payable to his mother, but there was no insurance payable to his wife or to his minor child.

For many months prior to his death, Hector H. Hickman had been suffering from a cancerous condition which extended to almost all parts of his body, including portions of his head. He went to Scott & White Hospital at Temple, Texas, on two occasions in April and May of 1948 for an examination and treatment. At that time it was found that his condition was incurable. During July and August of 1948, he made several trips to Hoxey's Cancer Clinic in Dallas where he received medicine and treatment. On August 23rd and 24th he went to the Maxfield Clinic at Dallas where he was examined and X-ray pictures were taken of various parts of his body. He returned to Brownwood on August 25th where he executed the will in question and immediately went back to Dallas. He there received treatment at Baylor University Hospital and the Maxfield clinic. By September 17, 1948, his mental state and his actions had become such that he was uncontrollable and was taken from the hospital which the evidence discloses was not prepared to take care of him in such condition. At that time, in the words of the doctor, he 'didn't know exactly where he was, what time it was and at-times it was impossible to reason with him at all.' There was other testimony to the effect that Hector H. Hickman was not of sound mind on occasions after September 17, 1948. Dr. O. N. Mayo who treated Hector H. Hickman while he was in the Medical Arts Hospital in Brownwood, at various times from October 7, 1948 until shortly before his death, testified; 'I didn't know the patient before he came in on October 7th and I could not say for sure then about his mental condition in August. At the time he was in our hospital and under my care, his mental condition was disturbed.'

Several X-ray pictures of portions of the body of Hector H. Hickman were taken during this period. One of such pictures taken under the direction of Dr. Mayo on October 4, 1948, was of a portion of Hickman's skull. Dr. Mayo also examined an X-ray picture of the skull of Hector H. Hickman taken by the Maxfield clinic of Dallas on September 15, 1948. After an examination of the two X-ray pictures taken some three weeks apart he stated that they showed practically the same condition and that, in his opinion, there was very little change in the condition of Hickman's head and skull from August 25, 1948 to the time of the taking of the two X-ray pictures in September and October; that in his opinion the disease from which Hickman was suffering was of duration of 'at least six months or a year, or longer.'

Numerous witnesses testified that Hector H. Hickman was irrational and uncontrollable and to acts indicating a mental incapacity on or about September 17, 1948, and on occasions thereafter. Dr. S. W. Hughes testified in reply to a hypothetical question that in his opinion Hector H. Hickman was irrational on August 25, 1948, when he executed the will. The history of Hickman's illness as shown by the evidence, was sufficient basis for the opinion of Dr. Hughes that he was laboring under a mental incapacity at the time of the execution of the will.

The fact that Hector H. Hickman made no mention or provision in his will for his wife and infant child is of itself a circumstance to be taken into consideration, together with all other evidence in the case in determining his mental capacity to make the will in question. Renn v. Samos, 33 Tex. 760; Stone v. Grainger, Tex.Civ.App., 66 S.W.2d 484. Hector H. Hickman not only failed to provide for his wife and child in the will but informed his attorney who prepared the will that his wife and child were taken care of by insurance. The evidence shows that the wife and child were not beneficiaries under any insurance policy on the life of Hoctor H. Hickman and that the statement made to the attorney was a mistake.

Hector H. Hickman's irrational mental condition soon after the execution of the will is unquestioned. The testimony of his accompanying physical condition by reason of the cancerous growth extending to practically all parts of his body for a long period of time prior thereto, is likewise uncontradicted. The above facts are sufficient as a basis for the testimony of Dr. Hughes, in answer to the hypothetical question presented to him, that Hickman was irrational on the date of the execution of the will. The unnatural disposition of Hickman's property under the will is likewise a fact which may be considered on the question of his mental capacity. In our opinion, this evidence, considered as a whole, justified a jury determination of the question of Hector H. Hickman's mental capacity to execute a valid will on August 25, 1948. 44 Tex.Jur., 574, 575; Chandler, et ux v. Weimers, Tex.Civ.App., 57 S.W.2d 585, Writ Ref.; Breeding v. Naler, supra; Walston v. Mabry, Tex.Civ.App., 225 S.W.2d 1014; Buchanan v. Davis, Tex.Com.App., 12 S.W.2d 978; Id., Tex.Civ.App., 300 S.W. 985; Polser v. Polser, supra; Cavanaugh v. Cavanaugh, Tex.Civ.App., 238 S.W. 1019.

In points 3, 4 and 5, appellants contend that the court erred in admitting X-ray photographs taken by the Maxfield Clinic purporting to be photographs of various parts of the body of Hector H. Hickman and a chart or history of Hickman's case kept by such clinic, alleged to be exhibits to and composing a part of the testimony of the witness, Dr. J. H. Maxfield, which was taken by oral deposition. The X-ray photographs were also used in connection with the testimony of other medical witnesses. Objections were made to the introduction of the photographs to the testimony concerning them and to the chart and history because they were never attached as exhibits to the deposition of Dr. Maxfield and had not been in the possession of the notary who took the deposition nor had such exhibits been filed with the District Clerk. It is urged by appellants that the fact that such exhibits were not attached to the deposition and certified and returned by the notary to the District Clerk along with and as a part of the deposition, was a violation of Rules Nos. 208 and 210, Vernon's Texas Rules of Civil Procedure.

The oral deposition of Dr. Maxfield was taken under an agreement of the attorneys for the parties hereto and provided that the signature of the witness was waived, that such deposition be taken, transcribed, certified to by the court reporter taking same, and returned informally into the District Court of Brown County. Dr. Maxfiled's testimony as set out in such deposition indicated that it was his practice as a physician and the practice of his clinic to keep an official record of the history given by the patient as well as the doctor's findings and treatment; that such a record or history was kept concerning Hector H. Hickman and that the doctor had the original record in his possession at the time of the taking of the deposition and that he had taken X-ray pictures of various parts of the body of Hector H. Hickman and had these pictures in his possession at such time. All attorneys...