Kirkpatrick v. Raggio

• Decision Date: 12 December 1958
• Docket Number: No. 15967,15967
• Citation: 319 S.W.2d 362
• Parties: Elizabeth Jane KIRKPATRICK, Appellant, v. Louise B. RAGGIO et al., Appellees.
• Court: Texas Court of Appeals

Page 362

319 S.W.2d 362

Elizabeth Jane KIRKPATRICK, Appellant, v. Louise B. RAGGIO et al., Appellees.

No. 15967.

Court of Civil Appeals of Texas, Fort Worth.

Dec. 12, 1958.

Rehearing Denied Jan. 9, 1959.

Harold L. Patterson, Garvin H. Germany, Jr., and C. C. Renfro, Dallas, for appellant.

Grier H. Raggio, Dallas, for appellee Louise B. Raggio.

De Shazo & Hyde, and Ara S. Hyde, Dallas, for appellees Dorothy Grove et vir.

RENFRO, Justice.

The will of George Kirkpatrick was admitted to probate by the Probate Court of Dallas County. Thereafter, Elizabeth Jane Kirkpatrick filed a proceeding to contest the validity of the will. Judgment was rendered against her, whereupon she appealed to the District Court. The grounds for invalidating the will were based on alleged mental incapacity and undue influence.

No issue was requested or submitted on mental incapacity. The court submitted the following issue: 'Do you find from a preponderance of the evidence that the making and execution of the instrument, which was signed by George Kirkpatrick as his last will and testiment on December 2, 1955, was procured by undue influence on the part of Dorothy C. Grove or James D. Grove or Louise B. Raggio?', to which the jury answered 'Yes.'

The court sustained a motion for judgment non obstante and entered judgment which upheld the order of the Probate Court.

Miss Kirkpatrick has appealed on the ground the court erred in entering judgment non obstante veredicto.

Although the 344 page statement of facts contains the testimony of fifteen witnesses, there is surprisingly little conflict in the evidence.

Kirkpatrick's wife, Margaret, predeceased him.

Before her marriage to Kirkpatrick, Margaret had been married to John Presbrey. Margaret was possessed of considerable personal and real property when she married Kirkpatrick. Margaret died on October 16, 1955. The greater portion of the property disposed of by Kirkpatrick by the will of December 2, 1955, was acquired from Margaret's estate.

In May of 1955, Kirkpatrick and Margaret went to Mrs. Rosson and had her prepare a will in which Kirkpatrick made Margaret his sole beneficiary.

On October 19, 1955, following Margaret's death, Kirkpatrick, accompanied by Mrs. Rosson, went to the office of Judge Shelby Cox, then a practicing attorney. He had known both Judge Cox and Mrs. Rosson twenty-five or more years. He requested Cox to probate Margaret's will, but it was discovered the will had not been witnessed, so Cox was employed to file application for administration. Cox, at that time, at the request of Kirkpatrick, prepared a will in which Kirkpatrick devised and bequeathed to Dorothy Grove all of his property, and which named her independent executrix without bond. The will was delivered to Kirkpatrick.

On December 2, 1955, Kirkpatrick executed the will in question. Witnesses were Margaret E. Mosshart, Marjorie Hayes, Marion Lake and Grier H. Raggio. The will was prepared by Louise Raggio. In this will Kirkpatrick bequeathed to a sister, a niece and a nephew certain designated items of personal property, and bequeathed to his daughter Jane, appellant herein, $1,200 in trust to be held by a savings and loan association and paid to Jane in the sum of $100 per month. All the rest and residue was bequeathed to Dorothy Grove. Mrs. Raggio was named executrix. After Kirkpatrick's death she duly qualified and made bond.

Margaret and Presbrey, her former husband, formerly lived in california. Mrs. Grove, then a child, became a close friend of Margaret and Presbrey. That close friendship continued more than thirty years and up to the date of Margaret's death. While a girl she spent several vacations a year in Margaret's home. Margaret designated one room in her home as Dorothy's room. After Margaret moved to Dallas, Dorothy continued to visit her at frequent intervals. While Dorothy's husband, James, was overseas, Dorothy and her children lived with Margaret. The relationship between Margaret and Dorothy was like that of mother and daughter. Margaret referred to Dorothy's children as her grandchildren. She referred to the Groves as her little family. After Margaret married Kirkpatrick, the Groves continued to visit Margaret at frequent intervals. The relationship between Kirkpatrick and the Groves was one of close friendship. Kirkpatrick remarked to several persons he wanted all his property to go to Dorothy. Jane was Kirkpatrick's daughter by a prior marriage. Due to a divorce between Kirkpatrick and his first wife, he did not see his daughter very often after she reached her 'teens', but their relationship was friendly and they corresponded with some degree of regularity. After the divorce of her parents she lived in California with her mother.

At the time of the execution of the wills of May and October, none of the persons mentioned in the issue submitted to the jury were present. There is no evidence any of the three knew such wills were to be made. At the time of the execution of the December 2nd will neither of the Groves was present. Mrs. Raggio was present in the capacity of an attorney. Mrs. Raggio told the persons present who were to witness the will that they must all be together in the room. The will was signed by Kirkpatrick in his bedroom. He told the witnesses the instrument was his will and he wanted them to sign as witnesses. He was in good spirits and in a cheerful mood.

Prior to December 2, Kirkpatrick was in bad health, had been in and out of the hospital, but was able to cook, drive his car and take care of most of his daily needs.

Appellant contends she established the following facts and circumstances with sufficient evidence to uphold the jury's verdict of undue influence:

The will was contrary to moral law and was unnatural; Kirkpatrick was very sick man before Margaret induced him to make the will of May 5, 1955, and was in a state of shock, over his wife's death, when he made the October 19, 1955, will; Dorothy and James Grove had been with Kirkpatrick three days before he made the October 19th will; if Kirkpatrick had personally made the decision to make the December 2nd will, he would have gone back to Shelby Cox, and not to Mrs, Raggio; Marion Lake tried to help Dorothy Grove obtain the estate; there is no evidence there was any real affection between Dorothy Grove and...