Holland v. Nimitz

• Decision Date: 15 June 1921
• Docket Number: (No. 250-3452.)
• Citation: 232 S.W. 298
• Parties: HOLLAND v. NIMITZ et al.
• Court: Texas Supreme Court

232 S.W. 298

HOLLAND v. NIMITZ et al.

(No. 250-3452.)

Commission of Appeals of Texas, Section A.

June 15, 1921.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Proceeding by Mary Ellen Nimitz and others against Robert S. Holland to contest the probate of the will of Mrs. Susan E. Holland, deceased. The will was admitted to probate in the county court, and also in the district court, and on appeal the Court of Civil Appeals (217 S. W. 244) reversed and remanded the case, and defendant brings error. Affirmed, as recommended by the Commission of Appeals.

Critz & Woodward, of Coleman, and Blanks, Collins & Jackson, of San Angelo, for plaintiff in error.

Wright & Harris, of San Angelo, for defendants in error.

SPENCER, J.

This was a proceeding by defendants in error to contest the probating of the will of Mrs. Susan E. Holland. The will was admitted to probate in the county court of Tom Green county, and the same result followed in the district court of that county. Upon appeal, the honorable Court of Civil Appeals reversed and remanded the cause, for the reason that the trial court refused to permit Mrs. Nimitz, a daughter and heir of the testatrix, to testify that, independently of any statement made by testatrix or transaction with her, but merely from observation of decedent's acts, conduct, and mental and physical condition, she was of opinion that testatrix was insane at the time of making the will. 217 S. W. 245.

The trial court excluded the proffered testimony because in its opinion it was inhibited by article 3690, Revised Civil Statutes 1911. That article reads:

"In actions by or against executors, administrators or guardians, in which judgment may be rendered for of against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent."

In our opinion the evidence was inadmissible. The validity of the will depends upon the sanity of testatrix at the time she executed it. Mrs. Nimitz was a party to the proceeding resisting the probate of the will and interested in establishing the insanity of testatrix. The question is thus narrowed to the single proposition: Is the opinion, as to the sanity of testatrix, based, not upon any conversation had with her or statement by her, but solely upon observations of her acts and conduct, and physical and mental condition, a transaction with decedent within the meaning of the statute?

We think that it is. The words "transaction with," as used in statutes similar to ours relating to the admissibility of transactions with decedents, have often received judicial interpretation, and have been held to include every method by which one person can derive impressions or information from the conduct, condition, or language of another. Holland v. Holland, 98 App. Div. 366, 90 N. Y. Supp. 208; Holcomb v. Holcomb, 95 N. Y. 316. The Supreme Court of this state, in Leahy et al. v. Timon et al., 110 Tex. 73, 215 S. W. 951, has definitely and pointedly decided that heirs of a decedent, whose will they are interested in setting aside, are prohibited by the terms of the statute from testifying as to statements by testatrix tending to establish testatrix's mental capacity at the time of making the will. Lasater v. Lopez, 110 Tex. 73, 215 S. W. 951.

There is just as much or more reason for prohibiting an opinion by an heir, based upon observations as to acts...