Huff v. Huff

• Citation: 52 S.W.2d 1092
• Decision Date: 23 September 1932
• Docket Number: No. 985.,985.
• Parties: HUFF v. HUFF et al.
• Court: Texas Court of Appeals

Page 1092

52 S.W.2d 1092

HUFF v. HUFF et al.

No. 985.

Court of Civil Appeals of Texas. Eastland.

September 23, 1932.

Appeal from District Court, Comanche County; Joe H. Eidson, Judge.

Suit by W. T. Huff and others against J. H. Huff. From an adverse decree, defendant appeals.

Reversed and remanded.

Callaway & Reese, of Comanche, and Gib Callaway, of Brownwood, for appellant.

Geo. E. Smith, of Comanche, for appellees.

FUNDERBURK, J.

The appeal is from a judgment of the court below, refusing probate of the will of Mrs. T. C. Huff, deceased. J. H. (Henry) Huff was the proponent and W. T. (Will) Huff, Mrs. Alma Camp, and Mrs. Iva House (the latter two each joined pro forma by her husband) were the contestants. J. H. Huff, Mrs. R. H. Denny, and George D. Huff were the beneficiaries named in said will. The beneficiaries and the contestants, W. T. Huff and Mrs. Alma Camp, were the children of Mrs. T. C. Huff, and the contestant Mrs. Iva House was her grandchild. In the county court the will had been admitted to probate. The grounds of the contest were two, namely: (1) Lack of testamentary capacity in the testatrix by reason of unsoundness of mind; and (2) undue influence of the beneficiaries, particularly J. H. Huff. In the district court the jury failed to make a finding upon the issue of mental incapacity, but found in favor of the contestants upon the issue of undue influence.

Appellant J. H. Huff, by his first five assignments of error, complains of the action of the trial court in overruling certain special exceptions to the answer of the contestants. Without setting out the portions of the pleading to which the exceptions were addressed, we express the opinion that the exceptions were properly overruled.

By assignments of error 7 to 15 it is contended that the court erred in permitting certain witnesses, over the objections of appellant, to testify to the effect that, in their opinion, the testatrix, Mrs. T. C. Huff, was not of sound mind. The point made is that the witnesses did not testify to such facts or circumstances as rendered admissible in connection therewith their non-expert opinions. There seems to be no difference of opinion between the parties as to the rule of law that should govern. Appellant simply insists that there was no evidence of the necessary facts and circumstances, and the appellees contend that there was such evidence. Since the question does not affect the disposition of the case, we deem it unnecessary to set out the evidence, but we have concluded that the witnesses did state sufficient facts to render admissible the evidence in question.

By assignments of error Nos. 17 and 18 it is complained that the court erred in permitting the contestant Will Huff to testify as follows: "Well, we would visit them once or twice a month. Mother was very feeble. Father died in 1925." And also as follows: "Well, Dr. Gray was called out there to see me and Mother was complaining and we asked him to go in and talk with her. He saw my mother on that occasion." The testimony was objected to on the ground that it showed a transaction with the deceased prohibited by R. S. 1925, art. 3716. We are inclined to the view that the testimony was, in part at least, such as the statute prohibits. Holland v. Nimitz, 111 Tex. 419 232 S. W. 298, 239 S. W. 185; International Travelers' Ass'n v. Bettis (Tex. Sup.) 35 S. W. (2d) 1040; Dominquez v. Garcia (Tex. Civ. App.) 36 S.W.(2d) 299. We are, however, also of opinion that the testimony should be treated as immaterial. We think that the record affirmatively shows that this testimony could not have injuriously affected the beneficiaries.

Complaint is made of the action of the trial court in admitting in evidence, over appellant's objections, two letters, one dated March 29, 1926, written by George Huff to W. T. Huff, and the other dated May 3, 1926, written by George Huff to Mrs. W. T. Huff. In the first letter is the following: "I am sorry to hear of the trouble with Mother. However, it is no more than I or all of us expected. * * * It would have not surprised me one bit if I had received a letter telling me that she had lost her mind completely. I have expected it every day and it may come yet."

The other letter was as follows:

"Dear Ada: I was mighty glad to have your letter several days ago telling me what you had gone through the past six months. I do not want you and Willie to feel badly at all. The outcome is about what we all expected. I know what she usually talked about. I have heard it a hundred times, over and over. It is enough to get on the nerves of any one. Many times when I would be home in the summertime I would be just counting the hours until it would be time I could get away. No one ever knew how glad I have been at times to step on the train. It seemed almost like going into a different world. I know you did your best and that is all there is to it. It was impossible to keep her in a good humor all the time. We all probably made a mistake to move her away from the old home. There is the only place she will ever be happy and it will be the place where she will spend the rest of her life. I do not want you to feel that you have failed but instead we can realize now that it was impossible. If it had been possible you would have succeeded. No one blames you or could blame you. You and Willie have done better than any of the rest of us could have done. It would have been worse had she gone anywhere else. So let's forget the fact that she got mad and things could not go as we had hoped they would. There is one thing I want you to know and that is I appreciate your effort in trying to take care of her. It is far more than many would have done. You have always been ready to help my ...