Krumb v. Porter, 10956.

• Decision Date: 14 May 1941
• Docket Number: No. 10956.,10956.
• Citation: 152 S.W.2d 495
• Parties: KRUMB et al. v. PORTER et al.
• Court: Texas Court of Appeals

152 S.W.2d 495

KRUMB et al. v. PORTER et al.

No. 10956.

Court of Civil Appeals of Texas. San Antonio.

May 14, 1941.

Rehearing Denied June 18, 1941.

Appeal from District Court, Karnes County; S. B. Carr, Judge.

Proceeding by Cordie Lee Krumb and others for probate of the will of Sallie S. Boyce, deceased, contested by W. J. Porter and others. From an order refusing to probate the will, the proponents appeal.

Affirmed.

D. O. Klingemann and F. V. Klingemann, both of Karnes City, L. J. Gittinger, of San Antonio, and R. M. Bounds, of McAllen, for appellants.

Dilworth & Shireman, of San Antonio, W. T. Scarborough, of Kenedy, and W. M. Porter, of Beeville, Texas, for appellees.

NORVELL, Justice.

This is an appeal from an order of the District Court of Karnes County refusing to probate the purported last will and testament of Sallie S. Boyce, deceased. Appellants, Mrs. Krumb and others are the proponents of said will and devisees or legatees thereunder. The appellees (contestants) are the heirs at law of Mrs. Boyce. This cause originated in the County Court of Karnes County which court refused to admit the will to probate. Upon appeal to the district court the case was tried without a jury, and no findings or conclusions were requested of the trial judge. We therefore presume that the trial court made all findings favorable to the judgment refusing to probate the will which have support in the evidence.

This appeal presents one question only for our determination, namely, Does the evidence show conclusively as a matter of law, that Sallie S. Boyce was of testamentary capacity at the time of the execution and publication of the will here involved? This question is in accord with the wording of appellants' contention as stated in their brief. As we must presume the trial court found that the testatrix did not possess testamentary capacity at the time of the execution of the will we may say conversely that the question of whether or not there is any evidence to support this implied finding is here presented for our determination.

Appellees attack the sufficiency of appellants' assignments of error. In holding that the above question and none other is involved in this appeal, we have applied the following rules: In determining the sufficiency of an assignment of error, a liberal policy of construction is employed. Lang v. Harwood, Tex.Civ.App., 145 S.W. 2d 945. However, an appellate court can not by construction supply an assignment of error as the authority of a Court of Civil Appeals "to revise the action of the lower court is limited to those questions (not fundamental) duly assigned as error, and it has no discretion, even though it thinks the ends of justice require such course, to substitute a method of its own for reviewing the judgment of the lower court for that method prescribed by the law making power." Clonts v. Johnson, 116 Tex. 489, 294 S.W. 844, 846. Assignments of error must be set forth in appellant's original brief. Assignments contained in a reply brief can not be considered except perhaps in exceptional cases. No exception to the general rule exists in this case. Article 1844, Vernon's Ann.Civ. Stats.; Rules of the Courts of Civil Appeals, Nos. 26, 27, 32 and 37; St. Louis Southwestern Railway Co. v. Texas Packing Company, Tex.Civ.App., 253 S.W. 864. An assignment asserting that the evidence conclusively establishes a certain fact or compels a certain conclusion raises a question of law and does not invoke the jurisdiction of the Court of Civil Appeals to determine a fact issue. Liberty Film Lines v. Porter, Tex.Com.App., 146 S.W.2d 982; Rodriguez v. W. O. W. Life Insurance Society, Tex.Com.App., 145 S.W.2d 1077.

The burden of proving the testamentary capacity of Mrs. Boyce rested upon appellants as proponents of the will. Article 3348, Vernon's Ann.Civ.Stats.; Payne v. Chance, Tex.Civ.App., 4 S.W.2d 328. Appellants made out a prima facie case of testamentary capacity by introducing the testimony of the attesting witnesses to the will, as well as that of attending physician of Mrs. Boyce and two other doctors. As above pointed out, the trial court found against appellants upon the issue of testamentary capacity. Appellants' testimony upon this issue cannot be held to be conclusive of the issue, unless we can say from the record presented that there was no evidence conflicting therewith, that is, no evidence supporting the trial court's implied finding.

It appears that Mrs. Boyce died on March 20, 1939. The disputed will was executed on March 11, 1939. At the time of her death, Mrs. Boyce was approximately seventy-nine years of age. About ten months prior to her death, Mrs. Boyce fractured her hip and was confined to her bed from the date of this injury until the date of her death. After leaving the hospital she stayed, as a paying guest, at the home of Mrs. Irene Parr, one of the named devisees in the will.

Dr. John W. Worsham, a witness for appellees, testified that he had treated Mrs. Boyce for a period of about three months while she was in a hospital immediately following the hip injury sustained by the testatrix. According to Dr. Worsham, Mrs. Boyce was somewhat undernourished and anemic. She was also suffering from cerebral arteriosclerosis. This doctor noted a marked decline in Mrs. Boyce's physical and mental condition during the three months he treated her, prior to the time she left the hospital and went to Mrs. Parr's home in San Antonio. She seemed to have difficulty in holding one line of thought. Dr. Worsham also testified that a mental condition caused by cerebral arteriosclerosis generally became worse as the disease or condition causing the mental impairment was usually progressive rather than static. This witness, however, had not seen Mrs. Boyce since she left the hospital.

The witness L. J. Gittinger testified that he was a practicing attorney and that between October, 1938, and March 11, 1939, he had drawn three different wills for Mrs. Boyce, including the one here in dispute. Mr. Gittinger objected to testifying as to his transactions with Mrs. Boyce, as did the appellants, upon the ground that Gittinger's communications with Mrs. Boyce were privileged. It is well settled that the privilege relating to communications between attorney and client is one which may be claimed by the client. The privilege is not that of the attorney. 44 Tex.Jur. 1071, § 100....