Lanham v. Lanham

• Decision Date: 20 October 1910
• Citation: 146 S.W. 635
• Parties: LANHAM v. LANHAM.
• Court: Texas Court of Appeals

146 S.W. 635

LANHAM v. LANHAM.

Court of Civil Appeals of Texas. Texarkana.

October 20, 1910.

On Motion for Rehearing, April 18, 1912.

Appeal from District Court, Parker County; J. W. Patterson, Judge.

Proceeding by Fritz G. Lanham for the probate of the will of Edwin M. Lanham, which was contested by Mrs. Bessie Stephens Lanham. From a judgment declaring the will invalid, the proponent appeals. Reversed and remanded in conformity to the answers of the Supreme Court (145 S. W. 336) to question certified by this court.

By an instrument wholly written by himself, dated July 24, 1908, Edwin M. Lanham, who died December 3, 1908, bequeathed to his brother, Fritz G. Lanham, in trust for the benefit of his (said Edwin M.'s) two children, Samuel S. Lanham and Edwin M. Lanham, Jr., who survived him, and who were then aged, respectively, about six and four years, his entire estate, worth, it was alleged, the sum of about $20,000. By the terms of the instrument, the trustee was to hold the property so devised, "until," quoting its language, "each child shall attain to legal age, and then to be paid to my said children equally, share and share alike. I authorize my said brother Fritz G. Lanham, as trustee for my said children, to invest the property of this estate as his best judgment may dictate, but to lend no moneys without good and sufficient collateral security. I direct the said Fritz G. Lanham, trustee as aforesaid, to use so much of the income from this estate as may be necessary for the proper maintainance and education of my said children. In the event of the death of either of my said children before arriving at legal age, then the whole estate shall go to the survivor. And in the event of the death of both of my said children before arriving at legal age, I direct said trustee, Fritz G. Lanham, to partition to my brothers and sister by blood, Howard M. Lanham, Fritz G. Lanham, Frank v. Lanham and Grace Lanham Connor, or the survivors of them, the remainder of this estate, share and share alike." Probate by the county court of Parker county of the instrument in question as the last will and testament of said Edwin M. Lanham, deceased, was resisted by appellee, his surviving wife and the mother of his said children, on the ground that, "while," quoting the language of her pleading, "under the influence of an insane delusion or delusions as to his wife's affection for him, and as to the obligation he was under to his wife, which no rational husband could have entertained, he, without any cause, conceived an insane dislike for his wife which impelled him to do her all the injury he could, and in consequence of which said will was made." The county court having refused to probate the instrument as said Edwin M. Lanham's will, appellant, who was named therein as executor, and who had offered same for probate, prosecuted an appeal from the order of said county court to the district court. In the latter court, a trial before a jury resulted in a verdict and judgment, declaring the will to be invalid. This appeal is prosecuted by said Fritz G. Lanham, the proponent of the will for probate.

Fritz G. Lanham and McCall & McCall, all of Weatherford, for appellant. Stennis & Wilson, of Weatherford, for appellee.

WILLSON, C. J. (after stating the facts as above).

Appellee, as a witness in her own behalf, over the objection of appellant was permitted to testify (quoting from the bill of exceptions) as follows: "That at Waco, Tex., at the residence of Dr. Howard Lanham, E. M. Lanham first heard of the death of his mother some time about midnight of the night the news reached Dr. H. M. Lanham; that immediately after learning of the death of his mother Mrs. Howard Lanham and Mrs. Bess Lanham left the Lanham home in Waco to go to a neighbor's to make arrangements about leaving Mrs. Howard Lanham's children with said neighbor while she could come to Weatherford; that after making said arrangements Mrs. Howard Lanham and Mrs. Bess Lanham returned to the Lanham residence, and on reaching the front porch there they found E. M. Lanham on his cot, where he had been sleeping; that Mrs. H. M. Lanham went on in the house, and Mrs. Bess Lanham went to the cot where E. M. Lanham was, and at said time he was crying; that she started to sit down by his side, but he motioned her to go in the house; that on the following morning, in riding on the train from Waco to Ft. Worth, E. M. Lanham sat in the coach several seats behind her. That she looked back at him several times, and every time she looked back at him he was gazing at her; that in coming from Ft. Worth to Weatherford she had in her handbag, or purse, a letter, written to E. M. Lanham by his mother, which he had received at Waco, Tex., and in some way had neglected or failed to take it with him when he left Waco, and she, finding the letter, put it in her bag or purse; that on the train between Ft. Worth and Weatherford Frank Lanham, having joined them at Ft. Worth to come to Weatherford, was sitting on an adjoining seat in the coach to witness and E. M. Lanham, and witness got the letter and started to hand it to Frank Lanham, when E. M. Lanham, seeing that she had the letter, took it out of her hand; that between the time they arrived in Weatherford and the time witness went to Ft. Worth E. M. Lanham, on one occasion at the old Lanham home, told witness that she had not loved him for several years, and that he had always known it." The objections urged to the testimony were: (1) That same detailed conversations and transactions had between the witness and the deceased, in violation of the statute (Sayles' Stat. art. 2302) declaring that "in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with or statement by the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent." (2) That same detailed confidential communications between a husband and his wife. Similar objections were urged and overruled to the contents of certain letters, 14 in number, written by the testator to his wife. The rulings of the trial court are attacked as erroneous by the first and second assignments. Portions of the testimony quoted above—for instance, the statement of appellee that every time she looked back at her husband when they were on the cars traveling from Waco to Weatherford to attend his mother's funeral "he was gazing at her"—were, we think, relevant to the issue being tried, were not within the inhibition of the statute referred to, and were not confidential communications between husband and wife. The objections were to the testimony, as quoted, in its entirety. The rule is that "if the exception goes to the whole of the testimony complained of, and a part is admissible, the objection to the evidence will not be considered." Wells v. Hobbs, 122 S. W. 453, and authorities there cited. Without respect, therefore, to whether a part of the testimony quoted may have been subject to the objections urged or not, the court did not err in overruling same.

It was shown that the testator was devotedly attached to his mother and to his wife until a short time before the death of his mother. There was evidence tending to show that his mother believed his wife had not been as considerate for and as respectful towards her, nor as thoughtful about him, as she should have been. During many months immediately preceding the time his mother died, he had been suffering from tuberculosis of the lungs, and was in the weakened physical condition that disease produces. The death of his mother occurred July 2, 1908, at Weatherford. Her death was sudden and unexpected. When it occurred he was at Waco. He had, a short time before her death, received a letter from his mother, the contents of which the record does not show. A theory of the contestant was that the death of his mother, occurring suddenly and at a time when he had become, by the ravages of the disease from which he suffered, greatly debilitated in mind as well as body, so unbalanced his mental faculties as to cause him, without reason and in spite of evidence to the contrary, to conclude that his wife, during the lifetime of his mother, had mistreated her, and neglected duties she owed to him and to their children. As relevant to this theory, 11 of the 14 letters referred to, specified in the bill of exceptions numbered 8, and written a short time before the death of his mother, were admitted as evidence to show the affectionate terms upon which he and his wife lived before his mother's death, and the contents of the other three were admitted as evidence showing that he harbored a belief that his wife had mistreated his mother, and that his feelings toward his wife had undergone a change. So far as the contents of the letters were material to issues in the case, same were, we think, confidential communications by a husband to his wife, and for that reason inadmissible as evidence in the case. Sayles' Stat. art. 2301; Mitchell v. Mitchell, 80 Tex. 116, 15 S. W. 705; 1 Green. Ev. §§ 254, 333, 337; 4 Wigmore, Ev. §§ 2332, 2336, 2337, 2341; Brewer v. Ferguson, 11 Humph. (Tenn.) 565, cited in 4 Wigmore, Ev. § 3264, note. While we think this is true, we would not feel bound to reverse the judgment on account of the error in admitting as testimony the letters written prior to the death of the testator's mother, showing love and affection entertained by him toward his wife. The law presumes that a husband loves his wife, and the admission as evidence of a confidential communication from him to her, showing the fact, ought to be treated as a harmless error. But we do not think the admission...