Highsmith v. Tyler State Bank & Trust Co.

• Decision Date: 04 April 1946
• Docket Number: No. 6203.,6203.
• Citation: 194 S.W.2d 142
• Parties: HIGHSMITH et al. v. TYLER STATE BANK & TRUST CO. et al.
• Court: Texas Court of Appeals

194 S.W.2d 142

HIGHSMITH et al. v. TYLER STATE BANK & TRUST CO. et al.

No. 6203.

Court of Civil Appeals of Texas. Texarkana.

April 4, 1946.

Rehearing Denied April 18, 1946.

Appeal from District Court, Smith County; Nat W. Brooks, Judge.

Will contest by A. O. Highsmith and others against Tyler State Bank & Trust Company and others. From a judgment of the district court confirming judgment of the county court admitting the will and codicil thereto to probate, contestants appeal.

Judgment affirmed.

Eades & Eades, Allen & Allen, and R. D. Hardy, all of Dallas, and Clyde F. Winn, of Waxahachie, for appellants.

Ernest Goens, Leslie Neill, and Ben Goodwin, all of Tyler, and J. A. Mallory, of Lindale, for appellees.

HALL, Chief Justice.

This is an appeal from an order of the District Court of Smith County, confirming judgment of the county court of that county, probating the will and codicil thereto, of Mrs. Eugenia Thweatt. The grounds for the contest in the court below were: (1) That Mrs. Thweatt, at the time she executed the will and codicil thereto, was a person of unsound mind, did not possess testamentary capacity and was in no respect capable of making a valid will; (2) that Mrs. Thweatt was unduly influenced to execute each of said instruments by compulsion, arguments, importunities and persuasions of other people. Appellees answered by exceptions and general denial. The trial was to the court without a jury and resulted as above set out.

By points 1 and 2 appellants contend (a) that the evidence is insufficient to support the judgment of the trial court and (b) that the judgment is against the overwhelming weight and preponderance of the testimony. On February 1, 1940, Mrs. Eugenia Thweatt executed the will and on February 26, 1940, she executed the codicil, both the subject of this controversy. Mrs. Thweatt died on December 24, 1941, and on January 14, 1942, the will with codicil attached was probated, and appellee, Tyler State Bank and Trust Company was named as administrator. No findings of fact and conclusions of law were filed and none requested, so the judgment must be sustained if there is sufficient evidence to support it on any theory of the case. Pennington v. Fleming, Tex.Civ.App., 212 S.W. 303; Blewett v. Richardson Independent School District, Tex.Civ.App., 230 S.W. 255. And it must be presumed that all issues of fact raised by the evidence were decided against appellants. Cooks', Waiters' & Waitresses' Union v. Theoharis, Tex.Civ.App., 228 S.W. 984. Since the will had been admitted to probate in the county court the burden of proof was upon the appellants to establish at least one of the grounds of the contest by a preponderance of the evidence. Chambers v. Winn, 137 Tex. 444, 154 S.W.2d 454.

No testimony was offered by appellants with respect to undue influence alleged to have been practiced upon Mrs. Thweatt, but all the testimony has reference to the mental condition of Mrs. Thweatt at the time she executed the will and codicil. The testimony offered by appellants was to the effect that on or about the dates of the execution of the will and codicil Mrs. Thweatt was a person of unsound mind, while the evidence offered by appellees was that at the time she executed the instruments she was a person of sound mind. It is true that appellees did not offer as many witnesses as did the appellants; however, the testimony offered by the appellees to our mind is clear and convincing, two of the witnesses being the attorneys who drew the will and codicil. In our opinion the testimony raised a disputed issue with respect to the mental condition of Mrs. Thweatt at the time she executed the instruments, which, of course, was to be determined by the trier of the facts, in this instance the able trial judge. He resolved the issue in favor of the appellees and we will not disturb his decision. El Paso Electric Co. v. Whitenack, Tex.Com.App., 1 S.W.2d 594; Chambers v. Winn, supra. In Foley Brothers Dry Goods Company v. Settegast, Tex.Civ. App., 133 S.W.2d 228, 234, writ refused, it is said: "The rule is well established in this state that an appellate court will not disturb the findings of a jury on conflicting evidence where there is some evidence to support their verdict, unless the verdict is so overwhelmingly against it as to shock the conscience or show clearly that the conclusion reached was wrong or was the result of some passion, prejudice, or improper motive." Citing cases. See also Woods v. Townsend, Tex.Sup., 192 S.W. 2d 884, not yet reported in the State reports. This rule is equally applicable to findings by the trial court when a jury is waived. These points are overruled.

Point 5, which embraces points 3 and 4, reads: "A jury having been demanded and the fee paid and this cause placed upon the jury docket the court was without authority to permit said cause to be withdrawn from the jury docket, and to try the same without the aid of a jury, without the consent of the parties not represented by counsel and who did not appear or participate in the trial or agree to waive a jury."

By separate and independent appeal to this court by writ of error Walter H. Coleman, a defendant in the court below, also presents the same question for our decision. It is the contention of appellant here, and Walter H. Coleman in his appeal, that he, Coleman, did not waive a jury and did not consent to a trial of the case before the court without a jury. If the rights of the parties to this appeal and Walter H. Coleman to the estate of Mrs. Thweatt were severable, we would have no difficulty in disposing of this question, for the reason that it clearly appears from the record that the appellants waived a jury and consented to the trial of the issue before the court without a jury and this action would estop them from contending otherwise at this time; but as we view the case the will and codicil of Mrs. Thweatt are either valid or invalid, and we shall discuss these points as they relate to the acts and conduct of Walter H. Coleman, as affecting the rights of all ...