Lee v. Lee

• Citation: 424 S.W.2d 609
• Decision Date: 14 February 1968
• Docket Number: No. B--282,B--282
• Parties: Lon LEE et al., Petitioner, v. John W. LEE, Jr., et al., Respondent.
• Court: Supreme Court of Texas

Page 609

424 S.W.2d 609

Lon LEE et al., Petitioner, v. John W. LEE, Jr., et al., Respondent.

No. B--282.

Supreme Court of Texas.

Feb. 14, 1968.

Paul Donald, Marvin F. London, Bowie, Ernest May, Fort Worth, for petitioner.

Fillmore & Fillmore, H. W. Fillmore, Wichita Falls, for respondent.

HAMILTON, Justice.

This case involves a suit to set aside the probate of the will of John W. Lee, Sr., which was executed October 2, 1961. Testator died May 22, 1964, at ninety (90) years of age. The will contained a self-proving clause and was probated on June 22, 1964, in the County Court of Montague County. Following probate this action was brought in the county court to set aside the Probate of the will. ¹ Lon Lee and Gladys Lee Barbee, the Contestants, Petitioners here, were children of testator and received a specific bequest of $10.00 under the terms of the will. ² The Proponents, Respondents here, are the Independent Executor and the remaining children, the residuary beneficiaries under the will. ³

The county court rendered judgment denying the contest and declared that the will was properly admitted to probate. The District Court on a jury verdict that testator was of 'unsound mind' rendered judgment for contestants; the Court of Civil Appeals reversed this judgment and rendered judgment admitting the will to probate. It held that the evidence offered by contestants could at most only create a suspicion of incapacity at intermittent periods not associated with the critical date of the execution of the will and that there was no evidence in support of the jury's answer that testator was of 'unsound mind.'

The Court of Civil Appeals extensively reviewed the evidence. The evidence in behalf of proponent shows that testator came unaccompanied to the office of scrivener, Earl Fitts, Esq., some few days prior to the execution of the will, and designated to Fitts the proposed disposition of his property. Testator returned after the will had been drafted, again unaccompanied, and executed it. As noted above the will contained a self-proving clause and the two witnesses and the notary, all longtime acquaintances of testator, testified that he was of sound mind when he executed the will. This testimony is however, not conclusive on the issue of testamentary capacity. See In re Price's Estate, 375 S.W.2d 900 (Tex.Sup.1964). The jury chose not to believe the testimony of the attesting witnesses and returned a verdict of 'unsound mind.' In this context we are presented with but one question: was there any evidence of probative value that J. W. Lee, Sr., was mentally incapacitated on October 2, 1961, the day he executed his will. It is fundamental that in answering this question the Court 'consider only the evidence which when viewed in its most favorable light, tends to support such a finding, and must disregard all evidence that would lead to a contrary conclusion.' Lindley v. Lindley, 384 S.W.2d 676, 679 (Tex.Sup.1964); See In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The proper inquiry in a will contest on the ground of testamentary incapacity is the condition of the testator's mind on the day the will was executed. Since there is no direct testimony in the record of acts, demeanor or condition indicating that testator lacked testamentary capacity on October 2, 1961, testator's mental condition on that date may be determined from lay opinion testimony based upon the witnesses' observations of testator's conduct either prior or subsequent to the execution. Carr v. Radkey, 393 S.W.2d 806 (Tex.Sup. 1965); Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849, 852 (1952) (Cancellation of a deed). However, only that evidence of incompetency at other times has probative force which demonstrates that that condition persists and 'has some probability of being the same condition which obtained at the time of the wills making. * * *' 1 McCormick & Ray, Texas Law of Evidence § 896, at 675 (2d ed. 1956); Annot. 168 A.L.R. 969 (1947).

Considering the preceding rules and the admonition in McCormick, supra at 676, that 'in all instances where the inadmissible shades into the admissible according to relative degrees of probative force * * * (the line is) one that no two men draw at exactly the same place * * *,' we shall briefly review that evidence most favorable to contestants which we hold constitutes some evidence of probative force that testator lacked testamentary capacity when he executed the will. The testator was eighty-eight (88) years old when he executed the will and was suffering from arteriosclerosis and senile psychosis. His wife died in 1946, and from that time until June 1961, his daughter Gladys Lee Barbee, contestant here, lived in his house and took care of him. She was keeping house for the testator when she married and thereafter continued at his request to live in the...