Johnson v. Poe

• Decision Date: 25 March 1948
• Docket Number: No. 11972.,11972.
• Citation: 210 S.W.2d 264
• Parties: JOHNSON et al. v. POE.
• Court: Texas Court of Appeals

Page 264

210 S.W.2d 264

JOHNSON et al. v. POE.

No. 11972.

Court of Civil Appeals of Texas. Galveston.

March 25, 1948.

Rehearing Denied April 15, 1948.

Appeal from District Court, Brazoria, County: M. S. Munson, Judge.

Proceeding in the matter of the will of Mrs. Susie Poe Johnson, wherein Jessie E. Poe, proponent, sought to have the will probated, and wherein C. E. Johnson and others, contestants, opposed probate of the will. From a judgment probating the will, the contestants appeal.

Affirmed.

Peter S. Solito, of Houston, Samuel J. Lee, and Robt. M. Lyles, both of Angleton, for appellants.

Floyd Enlow, of Angleton, and Henry Greenberg, of Galveston, for appellee.

GRAVES, Justice.

This appeal is from a judgment of the district court of Brazoria County, sitting with a jury, probating in favor of the proponent thereof, the appellee here, the will of Mrs. Susie Poe Johnson, over the protest of the contestants, the appellants in this Court.

The contestants below based their cause of action for the nullification of the will upon these two alleged grounds: (1) That Mrs. Johnson did not have testamentary capacity at the time the will was executed by her, and (2) That she was unduly influenced to make and execute the same by the appellee, Jessie Edgar Poe, who was her son.

The trial court submitted to the jury as the controlling issues of fact raised by the stated pleadings of the parties and the evidence heard thereunder, two special issues, which, together with the jury's answers thereto, were these:

"No. 1. Do you find from a preponderance of the evidence that Mrs. Susie Poe Johnson at the time she executed the instrument of writing, bearing date August 25th, 1941, have (had) testamentary capacity, as that term has herein been defined?"

Answer "Yes".

"No. 2. Do you find from a preponderance of the evidence that said instrument dated August 25th, 1941, and executed by Mrs. Susie Poe Johnson, was procured through undue influence exerted upon Mrs. Susie Poe Johnson by Jessie E. Poe, as the term `undue influence' has hereinbefore been defined?"

Answer "No".

In addition to such verdict of the jury, the trial court itself independently stated like findings from the testimony, declaring specifically that the testatrix did have testamentary capacity at the time she executed the declared-upon will, and that she had not been unduly influenced in so executing it by the appellee, thereupon ordering its probate.

In this Court the appellants have made no attack upon such findings of either the court or the jury as having lacked sufficient support in the evidence; but, contending that, since — to quote their language — "there was a very sharp conflict in the testimony with respect to whether or not Mrs. Johnson had the requisite testamentary-capacity, and as to whether or not she was subjected to undue influence by her son and sole beneficiary, Jessie Edgar Poe", the court erred in these rulings upon the evidence:

"Point No. I. It was error for the court to exclude the testimony of contestants' witness, Ben Dryden, after he had testified to association with and opportunity to observe deceased, that, in his opinion, based upon such observation and independent of any statement that she might have made or any transaction which she might have had, that she did not know the nature and extent of her property, nor fully understand the nature of her business.

"Point No. II. Because the court erred in refusing to permit contestants' witness, Dr. G. J. Hayes, after he had qualified as an expert and had testified to years of observation and treatment of the testatrix, of observing her conduct toward and association with the proponent, Jessie Edgar Poe, and having testified that she was a paranoiac, and that she was the type of person who could be easily subjected to the will of another person, to testify that the proponent, Jessie Edgar Poe, was, in his opinion, such a person as could substitute his will for that of the testatrix.

"Point No. III. Because the court erred in refusing to permit contestants' witness, Dr. G. J. Hayes, after he had testified that the deceased testatrix was afflicted with paranoia, which was a type of insanity, and that he had been present at numerous conversations between the deceased testatrix and the proponent and beneficiary named in the will, and that from such observations and conversations between himself and proponent and the deceased testatrix, that in the opinion of said witness, proponent exerted influence over the testatrix; * * *.

"Point No. IV. It was error for the court to permit the proponent's witness, Bob S. Owen, to testify over contestants' objection that the deceased testatrix had sufficient mental capacity to know of what her estate consisted, and her property, for the reasons that such testimony was a legal conclusion and invaded the province of the jury.

"Point No. V. It was error for the court to overrule assignment II of contestants' first amended motion for a new trial for the reason that the juror, Roy Shuman, misled counsel for contestants by withholding the fact that he had formerly been represented by counsel for the proponent, when, if such fact had been disclosed, contestants' counsel would have peremptorily challenged him."

None of these contentions, it is determined, should be sustained.

It is held that, under the authorities, none of the testimony so detailed and contended for under appellants' Points I, II, and III, constituted admissible evidence.

As to the witness Ben Dryden, it was shown that he was a half-brother of the appellee Jessie Poe, the proponent of the will, having been a son of the testatrix by her former marriage; hence he was interested as a matter-of-law in having their mother's will set aside, in which contingency he would have inherited an interest in her property under the statute of descent and distribution; he was therefore plainly disqualified as such a tendered witness. Corbel v. Koog, Tex.Civ.App., 188 S.W.2d 905, error refused; Kennedy Estate v. Richardson, Tex.Civ.App., 41 S.W.2d 95. So, being at least a potential heir of his mother, his testimony came clearly within the provisions of such R.S. Art. 3716.

Furthermore, even if this witness had not been so personally disqualified, the testimony the point contends should have been so received from him would have further been inadmissible under the direct holding to that effect of our Supreme Court in the analogous case of Holland v. Nimitz et al., 111 Tex. 419, 232 S.W. 298, 299. These declarations in that decision directly bar the contended-for testimony, to-wit:

"* * * 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.S. 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. * * *

"There is just as much or more reason for prohibiting an opinion by an heir, based upon observations as to acts or conduct of a party whose sanity is called in question, as there is to prohibit an opinion based upon statements made by such party.

* * * * * *

"The construction we have given the statute is borne out, and this case is ruled, we think, by the decision of the Supreme Court in Parks v. Caudle, 58 Tex. 216. * * *"

See also these further authorities to the same effect: Adams v. Adams, Tex.Civ. App., 132 S.W.2d 497, 500; Eastland et al. v. Basey et al., Tex.Civ.App., 196 S.W.2d 336; International Traveler's Ass'n v. Bettis, 120 Tex....