In re Williams' Estate, 3593.

• Decision Date: 04 January 1940
• Docket Number: No. 3593.,3593.
• Citation: 135 S.W.2d 1078
• Parties: In re WILLIAMS' ESTATE. SMITH v. MABRY.
• Court: Texas Court of Appeals

135 S.W.2d 1078

In re WILLIAMS' ESTATE SMITH v. MABRY.

No. 3593.

Court of Civil Appeals of Texas. Beaumont.

January 4, 1940.

Appeal from District Court, Jefferson County; R. L. Murray, Judge.

Action by Walter Mabry against Calvin Smith to probate a certain instrument in writing as the last will and testament of Pearl Robichaux Williams, deceased. A trial was had in the district court on appeal from the county court. From the judgment, Calvin Smith appeals.

Reversed and remanded for new trial.

Orgain, Carroll & Bell and John G. Tucker, all of Beaumont, and E. B. Pickett, Jr., and Bradford Pickett, both of Liberty, for appellant.

LeRoy McCall, of Beaumont, for appellee.

WALKER, Chief Justice.

This action was instituted by Walter Mabry, beneficiary, to probate a certain instrument in writing as the last will and testament of Pearl Robichaux Williams, deceased, executed by her by her mark on the 11th day of February, 1936, and witnessed by Henry Cooper and Lorena Thompson. The instrument was testamentary in its character, and was executed under the due formalities of law. By the terms of the instrument, the deceased devised to appellee, Walter Mabry, who was her uncle, a certain tract of land in Liberty county containing 26.7 acres of land. The probate of the will was contested by appellant, Calvin Smith, the father of the testatrix. On trial in the district court of Jefferson county, on appeal from the county court, the issues made by the pleadings were submitted to the jury by the following questions:

(1) "Do you find from a preponderance of the evidence that the purported will introduced in evidence, same being a paper dated February 11, 1936, was signed by Pearl Robichaux Williams in the presence of Henry Cooper and Lorena Thompson?"

(2) "Do you find from a preponderance of the evidence that Pearl Robichaux Williams signed such instrument with the intention that the same should be her last will and testament?"

On the jury's affirmative answers to both issues, the instrument in writing was admitted to probate as the last will and testament of Pearl Robichaux Williams, deceased.

The evidence raised the issue that Pearl Robichaux Williams did not execute the instrument in issue "with the intention that the same should be her last will and testament." Lorena Thompson, one of the subscribing witnesses, testified that on the day the instrument in issue was executed she went to the home of the deceased on the invitation of appellee, that he asked her to go—that he wanted her "to go and sign a mortgage"; that the deceased was awfully sick that day; that she signed the instrument in issue. She gave the following additional testimony:

"Q. Who asked you to sign that? A. This fellow told me to put it there. * *

"Q. What fellow? A. This fellow, White.

"Q. Did he tell you what kind of paper you were signing or wanted you to sign? A. A mortgage. * * *

"Q. Did you see Henry Cooper sign that paper? A. I didn't see him sign his name, but I signed mine.

"Q. You signed yours? A. Yes, sir.

"Q. At any time while you were there did Henry Cooper or the lawyer, White, pass a paper over to Pearl Williams and have her sign it while they held her hand? A. No, sir.

"Q. How is that? A. No, sir; I didn't see it.

"Q. At any time while you were there did Walter Mabry or the lawyer, White, name any other kind of paper except a mortgage? A. No, sir; a mortgage.

"Q. When you got over there was Henry Cooper already in the room? A. Yes, sir.

"Q. Did you know Henry Cooper before that time? A. Yes, sir.

"Q. While you were there at any time did anybody read a paper over to Pearl Williams and tell it was a will? A. No, sir. I haven't heard nor I haven't saw it. * * *

"Q. You said that Mabry told you he wanted you to sign what? A mortgage? A. Yes, sir: that is what it was, a mortgage.

"Q. Is that what it was? Do you know a mortgage when you see one? A. A mortgage. I know what it means; yes, sir.

"Q. How did you know that was a mortgage? A. Because they called me to sign to a mortgage.

"Q. Who told you it was a mortgage? A. I understood it was a mortgage, because when they called me that is what they called me to sign to, a mortgage.

"Q. Isn't it true he told you he wanted you to come over and witness a will? A. No, sir."

Emma Wilfrey, the grandmother of the deceased and the mother of appellant and appellee, moved into the home of the deceased and lived with her about eight months prior to her death, and was present in the room when the instrument in issue was executed. She testified that she was there when "White, a colored lawyer, came to the house where Pearl lived," and that appellee came with White, that she asked appellee "what is all this?" and he replied, "It ain't nothing but just a little mortgage." "I asked him what was all of this, because I seen this other man was there, and he said, `it ain't nothing more than a little mortgage that I am making to get Dr. Miller his money.'"; Dr. Miller was Pearl's physician.

"A. I didn't hear no will. She said it was a mortgage. That is what she told me, it was a mortgage, and he told me the same thing, because they are all my children and I love them all, but he told me it was just a mortgage until he could get money.

"Q. Who told you that? A. My son, Walter Mabry, my son told me that.

"Mr. McCall: We object to that.

"The Court: Objection sustained.

"Q. Was it there in the presence of Pearl at the time? A. Yes, sir.

"Q. Did she hear what he said? A. Yes, because she asked me about it and said, `What is a mortgage?' I said, `Just to collect the money.'

"The Court: Wait a minute. Judge Pickett asked you about what was said when Walter and your daughter were both there.

"A. That is what I am trying to say. I tried to go on, but when you hush me up, I can't talk.

"The Court: Just tell what was said there?

"A. That is what he said, it wasn't no will at all. He told me that.

"Q. When he said that, where was Pearl? A. She was laying in her bed.

"Q. Could she hear what he was saying? A. Yes, sir, she could hear him.

"Mr. McCall: We object to this, transaction happening several days before the will was executed.

"A. Wasn't no will.

"The Court: Objection overruled.

"Mr. McCall: Note our exception.

"Q. When you went to the trunk, did you find a deed? A. I looked in this end of it and she said to me, `Look in the other end in a little pink rag.' Well, I looked in there and I got the rag and when I took the rag, he was standing over me, and he taken it and I don't know what he done with it, but he took it and the next day she handed it to me and told me it was in the bed there, he had brought it back. Now I did not pay so much attention to that, but she told me to take it and give it to her papa."

On cross-examination, Emma Wilfrey testified: "Three day before they come there, she (Pearl) said she didn't know if they were trying to fool her or not. That is what she said, but she said `He is scared I won't pay him,' but she said, `If I live to get up I am going to work, I work for rich white people, and I know they will lend me the money to pay him, and if they don't, my daddy will pay him if they give him time."

Appellant rests his appeal upon the errors assigned against the ruling of the court excluding certain testimony.

(1) The following letter, on the testimony of Alphonse Curtis, written by him at the request and under the direction of Pearl Williams:

                                        "Beaumont, Tex
                                        "Feb. 17, 1936
                

"Dear Father:

"Only a few lines to let you hear from me. I recd. your letter and glad to hear from you. Tell Mrs. Sousie I thank her very much for the dollar she sent me. But I taken sick very shortly after I got it, that it why I am late in ans. your letter, I was so sick and it is so hard to get any one to write for you.

"I have been real sick in bed it was two weeks ago last Sunday gone. I varmeted up almost a half gallon of blood the Sunday night I taken sick. Uncle Walter got the Dr. for that Monday.

"The Dr. Put me in bed and told me to stay in bed and be quiet as I can possible be.

"I am taking shots they cost Uncle Walter $5.00 a piece. Uncle Walter is the only one that is bareing my expense—and for secoity of his money, It is not a will but in case of my death I willed him the place.

"But if I get up I can pay him his money back or he can pay the difference and I can redeem the place back. If I die all you have to do is pay Uncle Walter the money I owe him and take the place back. It was the only thing I could do because I needed help and I had to give him some kind of secoity.

"Don't get frighten over what I am telling you. I know every one must die and I must die also. I want you to have that place at my death if you can pay Uncle Walter back you take the place.

"Dont put your self to any trouble to come to see me because Uncle Walter is doing all he can for me, even though it is straining him mighty hard. But you could not do any more for me if you were here.

"Not my folks—But strangers have really treated me loyal since I have been down.

                "Love to all, your wife & Mrs. Lee
                          "Answer soon
                          "Your Daughter
                          "Pearley Williams
                          "120 Finnis St
                          "Beaumont, tex."
                

(2) Certain testimony relating to the delivery of this letter to Calvin Smith, and its custody subsequent to its delivery.

(3) Testimony of Emma Wilfrey, named above, quoting from the bill of exceptions: "That after Pearl Robichaux Williams died, certain money due as insurance from a lodge was paid to the said witness, Emma Wilfrey, the grandmother of deceased, and out of that money $5.00 was given to Walter Mabry by Emma Wilfrey as a repayment to him of that amount due him on account of the money he had loaned deceased to enable her to obtain medical attention."

Opinion.

The instrument in issue, to operate as a will, must have been executed by Pearl Robichaux Williams with the intention that it operate as...