Kutchinsky v. Zillion, 11643.
| Decision Date | 20 July 1944 |
| Docket Number | No. 11643.,11643. |
| Citation | 183 S.W.2d 237 |
| Parties | KUTCHINSKY v. ZILLION et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Harris County; Ben F. Wilson, Judge.
Proceedings by one Westerfield for probate of the will of Sarah May Nolsch, deceased, contested by Joseph Kutchinsky, and by Joseph Kutchinsky for probate of a later will of testatrix, contested by May Zillion and others. From a judgment probating the first will and denying probate of the second will, Kutchinsky appeals.
Affirmed.
Harris, Amsler, Stafford & Amsler and Sam H. Amsler, Jr., all of Waco, and Edgar Monteith, of Houston, for appellant.
Sam Holliday, of Houston (J. H. Burr, of Houston, of counsel), for appellees.
This is a will contest case, involving two wills executed by Sarah May Nolsch, whose first husband died in 1937, and left her a cement block business. She will hereafter be referred to as testatrix.
One of the wills was executed by testatrix in July, 1938. In it she made E. E. Luke her residuary legatee. Luke had been reared in the home of testatrix's mother in Illinois along with testatrix; he was younger than testatrix. She had married and come to Houston, Texas, and later Luke also came to Houston. He made his home at testatrix's home. She treated him as, and introduced him to her friends as, her brother, though there was no blood relationship. This 1938 will was offered for probate in the county court of Harris County by appellee Westerfield, and, over the contest of appellant, it was probated. The original copy of the 1938 will had been destroyed by the testatrix, at least physically, about March 14, 1940.
Before the probate court had ordered the will of 1938 probated it had refused to probate the other will, which testatrix executed on March 26, 1940, and which was offered for probate by appellant. Appellees contested the application of appellant to probate this will. The grounds of the contest were that testatrix lacked testamentary capacity at the time she executed such will, and executed it under the undue influence of appellant. In this connection it should be stated that testatrix first met appellant in December of 1939, and shortly thereafter she had employed him as a driver. She married him on September 19, 1940, which was, of course, some six months after she executed the March 26, 1940, will. She was 63 years old and he was 29 at the time of the marriage. She died early in January, 1941, from her final illness which began in October, 1940.
Appellant seasonably appealed from the orders of the probate court probating the 1938 will, and refusing to probate the March 26, 1940, will. The appeals were consolidated in the district court, and the consolidated case was tried to a jury. In response to special issues (and no contention is made that the pleadings did not amply support the submission of said issues), the jury found:
With respect to the March 26, 1940, will, that testatrix did not have testamentary capacity when she executed it. And that she was acting under the undue influence of appellant when she executed it.
With respect to the 1938 will, (a) that when she destroyed it, testatrix did not have sufficient mental ability to understand the business upon which she was engaged or the effect of her act in destroying the will, or the capacity to know the objects of her bounty, or their claims upon her, or the general nature of her property; and (b) that testatrix was caused to destroy the will because of the undue influence of appellant.
Before the case was submitted to the jury appellant had moved for an instructed verdict. After the verdict was returned, appellant moved for judgment notwithstanding the verdict. The court refused such motion and rendered judgment upon the verdict, probating the 1938 will, and refusing to probate the March 26, 1940, will as the last will of testatrix. Appellant here seeks to have that judgment reversed, and seeks to have judgment here rendered probating the March 26, 1940, will, as the last will of testatrix. And he predicates his appeal upon seven points. Each of these seven points purports to present error based upon the refusal of the trial court to grant appellant's motion for judgment notwithstanding the verdict.
The first point so presented by appellant reads: "A non-expert witness to an opinion on the mental soundness of a testator, should be required to testify to facts having direct relation to mental capacity, so that the witness may show that he is in a position to give an intelligent opinion." We do not regard the presentation of a mere abstract point of law as fatal, because mere errors of form in briefing could be corrected by re-briefing. Under his first point appellant reviews the testimony of several witnesses who testified to years of acquaintance with testatrix, and as to their opportunities to observe her conduct, peculiarities, etc. They testified as to a great change that took place in testatrix between the last of December, 1939, and the first of March, 1940, giving many incidents and circumstances. And then, based thereupon, they gave their opinion as to testatrix's sanity from and after such change, which they severally testified to, until her death.
Now appellant does not urge that he objected to the introduction of these opinions into the evidence upon the ground that the respective witnesses were not shown to be properly qualified to express an opinion, or upon any other ground. Appellant does not state that he reserved any objections to such evidence, or presented objections to the admission of such opinions in evidence to the attention of the court in a motion for a new trial, and does not state that such motion presents assignments of error on the admission into evidence of such opinions. See Rule 320, Texas Rules of Civil Procedure, and Collins v. Smith, Tex.Sup., 175 S.W.2d 407. We understand, therefore, that appellant takes the position that these opinions of non-expert witnesses are, upon their face, incompetent evidence, and, as incompetent evidence, can lend...
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