Jowers v. Smith

• Decision Date: 23 October 1950
• Docket Number: No. 6108,6108
• Parties: JOWERS et al. v. SMITH et al.
• Court: Texas Court of Appeals

Page 805

237 S.W.2d 805

JOWERS et al. v. SMITH et al.

No. 6108.

Court of Civil Appeals of Texas, Amarillo.

Oct. 23, 1950.

Rehearing Denied Nov. 20, 1950.

Hackney & Crewford, Brownfield, for appellants.

Crenshaw, Dupree & Milam, Lubbock, and McGowan & McGowan, Brownfield, for appellees

PITTS, Chief Justice.

This is a will contest seeking to nullify a former judgment of the County Court of Terry County admitting to probate the will of W. J. Smith, deceased, and declaring both the former judgment and the will invalid for lack of mental capacity of the testator to execute the will and because of the exercise of undue influence upon the testator by his son Andrew Q. Smith. The testator was 88 years of age at the time of his death on April 27, 1948, in Terry County, Texas, and his estate consisted of about 400 acres of land together with some personal property. There were thirteen children born to him and his first wife who died in 1936, two of the children died in infancy and another preceded the testator in death leaving a son surviving her. Thereafter in September of 1938 the testator married Callie Smith, who, together with ten of the children by his first marriage and the son of his deceased daughter, survived him.

The record reveals that the will in question was executed on February 1, 1943, and testator bequeathed two milch cows and their calves and a life estate to the surface rights of a quarter section of land to his surviving wife, Callie Smith, with the remainder of the said land together with the mineral rights therein to his son, Andrew Q. Smith. To his other nine children and his grandson he bequeathed $1.00 each. All the rest of his property he bequeathed to his son Andrew Q. Smith whom he likewise named as independent executor.

Upon the application of Andrew Q. Smith the will was admitted to probate on May 17, 1948. Thereafter on January 3, 1949, four of the surviving children of testator, namely: Eugene Smith, Mrs. Ella Jowers, Mrs. Monterey Cogburn, and Mrs. Ethel Bristow, each joined by her husband, and Mrs. Callie Smith, the surviving wife of the testator, filed this suit in the County Court of Terry County against the other six surviving children of testator, namely: Andrew Q. Smith, Frank Smith, Mrs. Cornelia Goode and husband, Mrs. Isabel Colwell and husband, Mrs. Neuma Skaines and husband, Mrs. Dillie Fitzgerald and husband, and the surviving grandson of the testator, Willard Helmer, seeking to set aside the will for the reasons previously herein stated. The defendants denied generally the allegations of contestants, after which the defendants, Mrs. Goode, Mrs. Skaines, Frank Smith and Willard Helmer, each filed a separate answer denying plaintiffs' allegations and alleging that the testator was of sound mind and memory when he executed the will in question and that the same was executed by him of his own free will and without having been influenced or persuaded so to do by any other person.

On July 20, 1949, the Judge of the Terry County Court heard the contest and denied contestants any recovery, upholding the validity of the will and the former judgment admitting it to probate. Contestants perfected their appeal to the District Court where a trial was had before a jury. At the conclusion of the evidence offered by the contestants the trial court instructed a verdict against them and rendered judgment accordingly upholding the validity of the will from which judgment an appeal has been perfected. The contestants will be hereafter referred to as appellants and the defendants as appellees.

It must be remembered that this is not an appeal from an original proceeding admitting the will to probate, but this is an attack made upon the validity of a will that had already been admitted to probate without a contest and a final judgment so entered. The proponents who offered the will for probate originally assumed the burden of complying with all legal formalities and of establishing the necessary prerequisites for its validity. These matters were heard and determined by the probate court in the original proceedings and every presumption must now be indulged in favor of the validity of the will. The rule always obtains that testamentary incapacity will never be presumed as to the testator of a will duly probated and the burden rests upon those who seek on such grounds to set aside a will duly probated and show, if they can, such testamentary incapacity. Those who seek in a new suit to set aside a will that has already been admitted to probate on the grounds of testamentary incapacity or undue influence, or both, have the burden of establishing such charges by a preponderance of the evidence. Cook v. Denike, Tex.Civ.App., 216 S.W. 437; Barton v. Bailey, Tex.Civ.App., 202 S.W.2d 277, and other authorities cited in these cases. The latter case cited further holds that the real test in a case such as this for determining the testator's mental capacity for making a will is whether or not he knew at the time what property he owned, the objects of his bounty and understood the general effect of his will.

In the case at bar only law witnesses testified and only two of them testified that the testator was of unsound mind and they are the daughters of appellant Callie Smith and were the stepdaughters of the testator. A brief summary of the testimony given by the witnesses is here stated.

(1) J. A. Parks testified that he had been a neighbor of testator and had known him thirty years before his death; that he visited with him on one occasion and talked with him about the sale of some nice white-faced cattle early in February of 1943 (about the time the will was executed); that on that occasion testator said 'I won't sell you anything because I don't know what is going on'. But he and testator went out and looked at the cattle and testator told him Andrew would have to pass on the matter before he would sell them; that Andrew looked after testator's business and he (witness) said no more about buying the cattle but had a friendly visit with testator as usual; that the witness further testified in response to questions propounded by appellants' counsel as follows:

'Q. Mr. Parks, did you notice any marked change in him from back when you first knew him up until 1943? A. Oh, yes, I notice that on everybody; that is, I do on me.

'Q. Did you notice a marked change in the old gentleman? A. Yes, sir.'

(2) B. M. Wade testified that he had known testator since 1916; that he had visited him quite often and was at his bedside when he passed away; that he at the request of testator had witnessed the will in question.

(3) O. F. Campbell testified that he had known testator since 1939 when witness had worked testator's land and had business dealings with him and that testator was in poor health at that time; that he saw testator after he had worked his land and testator seemed to be getting weaker.

(4) Nancy Rounsaville testified that she knew testator during his lifetime and had visited in his home but not since 1936; that she met him on the street in Brownfield in 1943 and he did not know her; that she told him who she was and talked with him for some time, asking about the family and his realth, which apparently was bad; he looked sick and apparently had been for some time.

(5) L. B. Alexander and his wife both testified that they had known testator since about the middle of 1944 after which time they visited him in his home four or five times each year; that he was sick and in bed about half the time and seemed feeble; that he did not know them sometimes and they had to tell him who they were.

(6) Appellant Eugene Smith testified that he was testator's oldest son; that his mother, testator's first wife, died in 1936 and he further testified as to other members of the family but he gave no material facts concerning the issues of mental incapacity or undue influence.

(7) Appellant Mrs. Callie Smith testified that she was 76 years of age and the surviving widow of testator. She further testified that from 1940 until testator died in 1948 Andrew Q. Smith leased and worked testator's land and was in and about the home premises often, during which time he ate his meals with her and his father. She was later recalled and testified about giving the will in question to Andrew Q. Smith once before testator died and he returned the will to her later in the same day and that she gave the will to Andrew again after testator died. She was asked no questions about the testator's mental condition during his lifetime and therefore gave no testimony concerning such.

(8) Mrs. Goldie Killingsworth testified that she was the daughter of Mrs. Callie Smith by a former marriage and the stepdaughter of testator; that she had known him since 1938 when he and her mother married; that during the years 1939, 1940, 1941 and a part of 1942 she visited in their home quite often, stayed in their home some and drove the car for them but after 1942 she only visited in their home; that during the time she was associated with testator he had cataracts on his eyes which affected his vision and that he was a sick man, very feeble, 'off-minded' and she drove for him to visit the doctors; that she further observed that he would be writing letters and noticed that his mind was getting off and it bothered him because his mind was leaving him and he knew it, he couldn't figure like he used to, he thought people were stealing from his premises, thought his wife was a prowler in the house one night and nearly shot her, his children would drive up and he would go to the door and ask 'who is that?' The witness further testified that testator often thought someone was stealing something and he locked the house at night; that he was not able to work and attend to his own business and Andrew attended to most of his business; that he said 'he knew his health was failing him' and he would get mad at himself about it. The witness was recalled...