Leahy v. Timon

• Decision Date: 05 June 1918
• Docket Number: (No. 6051.)
• Citation: 204 S.W. 1029
• Parties: LEAHY et al. v. TIMON et al.
• Court: Texas Court of Appeals

204 S.W. 1029

LEAHY et al. v. TIMON et al.

(No. 6051.)

Court of Civil Appeals of Texas. San Antonio.

June 5, 1918.

On Motion for Rehearing, July 1, 1918.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Suit by Cecelia Leahy and others against Walter F. Timon and others. From judgment for defendants, plaintiffs appeal. Affirmed.

D. McNeill Turner, of Denver, Colo., John C. Scott, of Corpus Christi, and Beasley & Beasley, of Beeville, for appellants. Kleberg & Stayton, G. R. Scott, and Boone & Pope, all of Corpus Christi, Dougherty & Dougherty, of Beeville, and C. M. Pollard, of Houston, for appellees.

MOURSUND, J.

This suit is one by Cecelia Leahy, joined by her husband, Phillip Leahy, and Laura Dolan, daughters of Mrs. Ellen Timon, deceased, and Mary Ellen Ellis, joined by her husband, C. C. Ellis, Ann Arabella Blair, joined by her husband, Sam Blair, John Henry Timon, Amos Cecil Timon, Walter Lee Timon, Augusta Margaret Timon, Edward Beasley Timon, a minor, who sued by his mother, Agnes Timon, as next friend, who are the children of John W. Timon, the deceased son of Mrs. Ellen Timon, against Walter F. Timon, E. C. Timon, H. J. Timon, and Lizzie J. Barry, children of said Mrs. Ellen Timon, and Harry T. Dolan, a minor grandson of Mrs. Ellen Timon, to contest the validity of a paper purporting to be the will of said Mrs. Ellen Timon, dated January 17, 1912, and also its probate in the county court of Nueces county under a decree rendered February 4, 1915. The grounds alleged were that at the date of such instrument Mrs. Timon was without testamentary capacity, and that such instrument was the product of fraud perpetrated on her by defendant Walter F. Timon, and of undue influence exercised over her by him. During the pendency of the suit, Edward Beasley Timon reached his majority, and thereafter prosecuted the suit in his own name. The suit was filed in the county court of Nueces county on March 16, 1915. Claude Pollard was appointed guardian ad litem for the minor, Harry Timon Dolan. Judgment was rendered in the county court in favor of defendants, and, upon appeal to the district court, a general verdict was returned by the jury in favor of defendants, upon which judgment was entered, reaffirming the validity of the will and its probate, and adjudging the costs, including a fee of $1,000 for Claude Pollard, against the plaintiffs. Plaintiffs appealed.

Under the instrument an estate of about a half million dollars was devised, one-third to one-half thereof to Walter F. Timon, property worth about $20,000 to Harry T. Dolan, the minor son of plaintiff Laura Dolan, and to each of the other three defendants a substantial portion; no effort being made to provide uniformity in value as to any of the beneficiaries. The plaintiffs were entirely pretermitted. Walter F. Timon was appointed independent executor, trustee to hold and manage the property devised to Harry T. Dolan, and it was further provided that the bequests be divided and apportioned among the devisees by the executor in such manner and form as to him might seem proper. A vast amount of testimony was adduced, the statement of facts containing 900 pages.

In the charge of the court the issues of mental capacity, undue influence, and whether Mrs. Timon executed the instrument were specifically submitted, and reference made to the issue of fraud. At plaintiffs' request the court gave special charges drawn by plaintiffs submitting each of the following issues: (1) Fraud; (2) mental capacity; (3) whether the instrument signed by Mrs. Timon had been altered after she signed it; (4) whether Mrs. Timon knew and understood the contents of the instrument at the time she signed it; (5) undue influence. By its general verdict for defendants the jury found in their favor as to each issue submitted. We conclude that the evidence is sufficient, as to each of such issues to support the verdict of the jury. We conclude, further, that the testimony is not of such character, as to any material issue, as would justify this court in exercising the power, conferred upon it, to set aside a verdict on the ground that it is so contrary to the preponderance of the testimony as to show that manifest injustice has been done. The evidence is discussed at length and with much ability in both briefs, which also disclose an exhaustive investigation of authorities for the purpose of supporting the contentions made with respect to the weight to be given to certain facts. Were we to attempt to follow the discussion, this opinion would be indeed lengthy, and no useful purpose would be subserved thereby.

Assignments 7 to 13, inclusive, and 16 and 17, complain of the refusal to permit Cecelia Leahy, one of the plaintiffs, to testify to certain statements made by Mrs. Timon to her. By the fifteenth assignment complaint is made because the court, on motion of defendants, struck from the evidence and instructed the jury not to consider testimony of Mrs. Leahy relating to a transaction between her and Mrs. Timon. While some portions of the testimony to which the assignments relate might not be material, there is sufficient thereof material to require a reversal of the judgment, if testimony of this character is admissible in cases of this kind. We conclude, however, that, under the decisions of our Supreme Court, the testimony of Mrs. Leahy, a party to the suit, concerning statements by or transactions with Mrs. Ellen Timon, was not admissible over the objection that it was inhibited by article 3690, R. S. 1911. Brown v. Mitchell, 75 Tex. 9, 12 S. W. 606; Sanders v. Kirbie, 94 Tex. 564, 63 S. W. 627; Lewis v. Aylott, 45 Tex. 190; McCampbell v. Henderson, 50 Tex. 602; Parks v. Caudle, 58 Tex. 216; Reddin v. Smith, 65 Tex. 26; Ross v. Kell, 159 S. W. 120; Clark v. Briley, 193 S. W. 422.

This case cannot be distinguished from the case of Brown v. Mitchell, supra, and if article 3690 applies to any case involving the probate or validity of a will it appears that it would apply to this case, for it is one by pretermitted heirs against the devisees and executor named in the will. That the statute has application to some cases involving the probate of wills is expressly stated or taken for granted in the cases of Gamble v. Butchee, 87 Tex. 643, 30 S. W. 861; Martin v. McAdams, 87 Tex. 225, 27 S. W. 255, and Ingersol v. McWillie, 9 Tex. Civ. App. 543, 30 S. W. 56, and 87 Tex. 647, 30 S. W. 869. If it be held not to apply in a will contest case, it can only be upon the ground that the suit is not between parties such as are described in the article, or on the ground that the language of the last portion of the article descriptive of the suits to which the provisions of the first part have been extended is not broad enough to include the particular contest. In the early case of Parks v. Caudle, above cited, our Supreme Court held, in a suit by heirs against heirs, and therefore coming within the latter portion of said article, that the testimony inhibited by the first portion thereof was not merely statements by the deceased to the witness, or transactions between the deceased and witness, but also statements to or transactions between deceased and third persons, and that, too, occurring when the witness had no interest therein. It also held that the expression "transaction with such decedent," found only in the latter portion of said article, is broad enough to include the execution of a deed by the decedent to one whose heirs are claiming under it. The statute was also applied in the case of Reddin v. Smith, supra, which also may be said to have arisen out of transactions by the decedents with others than those who were parties to the suit.

These cases were decided by the court while Judge Stayton, who wrote the opinion in Brown v. Mitchell, was a member thereof. The decision in the last-mentioned case, it appears, is in harmony with the earlier decisions. It is suggested, however, that later decisions of the Supreme Court modify the holding in Brown v. Mitchell. The case of Martin v. McAdams, supra, is especially relied on. It appears that certain reasoning adopted from a Kentucky case not available to us, and used for the purpose of illustrating the rule of construction as to what is a transaction, if such reasoning is followed to its logical conclusion, would limit the application of the statute to suits the purpose of which is to take away funds or property from the estate of a deceased person, and to deny its application to suits involving the rights of heirs to the estate. To give such a broad effect to the language would be to deny the purpose of the statute, as stated by the same great judge in writing the opinion for the court in the case of Moores v. Wills, 69 Tex. 109, 5 S. W. 675, and stated by our courts in other cases. As two members of the court participated in the decision of the case of Brown v. Mitchell, and no comment is made with regard to such case, it cannot be presumed that the court intended to announce a rule in conflict therewith. It is also evident that, if the court had been of the opinion that the statute only applied to suits the purpose of which was to deplete the estate, it would hardly have gone to so much trouble to discuss the particular evidence, and hold that the statute did not apply to such evidence.

It is also made a matter of comment that the Supreme Court, in the case of Sanders v. Kirbie, 94 Tex. 564, 63 S. W. 626, based its decision upon the assumption that the statute applied to that case, which assumption had been made by the Court of Civil Appeals in its certified question. It is true the court refrained from committing itself, but whether because it was unnecessary to do so, or because the suit was one in which all parties were legatees or devisees, and therefore not based on the identical facts shown in the case of Brown v. Mitchell, is a matter of surmise and conjecture. There can be no question in this case that the...