Leahy v. Timon

• Decision Date: 29 October 1919
• Docket Number: (No. 3273.)
• Parties: LEAHY et al. v. TIMON et al.
• Court: Texas Supreme Court

Page 951

215 S.W. 951

LEAHY et al. v. TIMON et al.

(No. 3273.)

Supreme Court of Texas.

October 29, 1919.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Cecelia Leahy and others against Walter F. Timon and others. Judgment for defendants affirmed by Court of Civil Appeals (204 S. W. 1029) and plaintiffs bring error. Affirmed.

D. McNeill Turner and Jno. C. Scott, both of Corpus Christi, and Beasley & Beasley, of Beeville, for plaintiffs in error.

Kleberg & Stayton, G. R. Scott, and Boone & Pope, all of Corpus Christi, Dougherty & Dougherty, of Beeville, and Claud Pollard, of Houston, for defendants in error.

C. R. Wharton, of Houston, amicus curiæ.

GREENWOOD, J.

This was a suit to contest the validity of the probated will of Mrs. Ellen Timon, deceased. It was brought by certain of Mrs. Ellen Timon's heirs, including Ella Ellis, a daughter of a deceased son of Mrs. Timon, and including Cecelia Leahy, a daughter of Mrs. Timon, joined by her husband, Phillip Leahy, against the devisees under the will, including Walter F. Timon, a son of Mrs. Ellen Timon and executor of the will. The will was attacked on the grounds first, that its execution was induced by the exercise of undue influence on the testatrix by Walter F. Timon; and, second, that the testatrix lacked sufficient mental capacity to make a will. Trials in the county and district courts resulted in verdicts and judgments sustaining the will, and the Court of Civil Appeals affirmed the judgment of the district court.

The principal question here presented is whether, under a proper construction of article 3690 of the Revised Statutes, this suit is an action by the heirs of a decedent arising out of any transaction with such decedent, the Court of Civil Appeals having affirmed the correctness of the refusal of the trial court to permit heirs of Mrs. Ellen Timon, viz. the plaintiffs Cecelia Leahy and Ella Ellis, to testify, at the instance of the plaintiffs, to various statements by Mrs. Timon to them tending to establish that Mrs. Timon's action in making the will was the result of Walter F. Timon's undue influence, or that Mrs. Timon was afflicted with mental incapacity.

The contentions of plaintiffs in error are that while this is an action by the heirs of a decedent, in which the testimony excluded was that of heirs who were offering to testify against opposite parties, without being called to testify by them, as to statements of the decedent, yet it is not such an action as comes within the operation of the statute, first, because only such actions as would establish a claim against the decedent's estate or as would reduce or impair the estate come within the true meaning of "actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent"; and, second, because, unless an action arises out of a transaction between the decedent and a witness offering to testify, it does not arise out of a transaction with the decedent within the true meaning of the statute.

Under the common-law rule no interested witness was competent to testify, and this court announced in Osborn's Adm'x v. Cummings, 4 Tex. 12, that the true test for ascertaining the interest of a witness was, as laid down by Greenleaf, "that he will either gain or lose by the direct legal operation or effect of the judgment, or that the record will be legal evidence, for or against him, in some other action."

To change the common-law rule in Texas, the Legislature passed the act approved May 19, 1871, which provides:

"Section 1. That in the courts of this state there shall be no exclusion of any witness on account of color, nor in civil actions because he is a party to, or interested in, the issue tried.

"Sec. 2. In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court." Gammel's Laws, vol. 6, p. 1010.

The second section of the above act was construed by the Supreme Court to exclude the testimony of devisees in a suit brought by them to establish and probate a nuncupative will, wherein heirs of the decedent appeared and defended the suit. The court was of the opinion that the act was intended to safeguard the rights of all parties beneficially interested in the estate, and that hence it applied to a suit against heirs by devisees. Lewis v. Aylott's Heirs, 45 Tex. 202.

The second section of the act was also held to apply to an action to subject property, which had descended to heirs, to a demand against their ancestor, on the ground that the heirs "stand in his place and are to be regarded as his representatives." McCampbell v. Henderson, 50 Tex. 613.

The court refused to hold that testimony should be excluded, by virtue of section 2, in an action against a surviving partner, or in an action where the party defendant, who offered to testify, had disclaimed, because section 2, being a proviso to section 1, should be strictly construed. Roberts v. Yarboro, 41 Tex. 451; Markham v. Carothers, 47 Tex. 25.

By the Revised Statutes of 1879, section 2 was amended so as to read as follows:

"Art. 2248. 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."

The above article is carried forward as article 3690 in the Revised Statutes of 1911.

Two changes were made in section 2 of the original act, viz.: First, the provision was eliminated for admission of testimony of a proscribed party to transactions with, or statements by, the testator, intestate, or ward, upon his being "requested to testify thereto by the court"; and, second, the provisions of the statute were expressly extended to include "all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent."

In our opinion the language of article 3690 does not admit of the restricted application for which plaintiffs in error contend.

There is nothing in the language to confine the operation of the statute to any particular character of action, by or against heirs or legal representatives of a decedent, arising out of any transaction with such decedent. On the contrary, the statute expressly declares that its provisions are to extend to all actions, by or against the parties named, arising out of any transactions with the decedent. This action is confessedly by heirs of a decedent, and it seems to us that it plainly arose out of a transaction with the decedent; for, under the view most favorable to plaintiffs in error, which is that their action arose from the making of the will, and that the making of the will involved a transaction between only Mrs. Timon and the two disinterested attesting witnesses, it cannot be denied that plaintiffs in error's action arose from a transaction with the decedent. However, it may well be doubted whether so much of plaintiffs in error's action as seeks to set aside the will as procured by undue influence can be properly said to arise from a transaction to which only the decedent and the subscribing witnesses to the will were parties. At least that part of the action would seem founded, to a considerable extent, on a transaction of the party exercising the undue influence with the decedent, and such party was one of the defendants herein.

It is not the language of the statute that the provisions thereof shall extend to actions by or against the heirs or legal representatives of a decedent arising out of any transaction of a party offering to testify with the decedent. All that is necessary to extend the provisions of article 3690 to an action is that it be one arising out of a transaction with the decedent, and be by or against the specified parties.

We think it equally plain that it was the intent and purpose of the statute to exclude the proffered testimony of heirs of Mrs. Timon in this action by them to contest the will.

The law, as originally enacted, shows the legislative determination that it would be unwise and unjust to receive, against those claiming under a decedent, the testimony of one directly interested, as a party, in a judgment, with respect to matters as to which his testimony, though false, would ordinarily be incapable of contradiction or explanation, unless called to testify by the opposing party, or unless required to testify by the court. Judge Gaines, in stating the reason for the exception made in removing the bar of the common law, said:

"The transactions and conversations between two persons are often known to them only; and it would seem that the object of the exception made by the article from which we have quoted was to preclude the injustice of permitting one party to the record to testify in regard to matters about which, from the very nature of the case, it was not probable that his testimony could be rebutted. Death having sealed the lips of one of the persons who best knew and was most interested in the transaction, it would seem impolitic to remove the bar of the common law, which excludes the testimony of the other. This appears to be the reason and spirit of the article cited." Moores v. Wills, 69 Tex. 112, 5 S. W. 676.

There can be no doubt that the purpose of the amendment of 1879 was to expressly extend, and not restrict, the operation of the statute. Not only is an...