Lehmann v. Krahl

• Decision Date: 30 November 1955
• Docket Number: No. A-5291,A-5291
• Parties: Maurice J. LEHMANN et al., Petitioners, v. Anton KRAHL and Steve Krahl, Respondents.
• Court: Texas Supreme Court

Page 179

285 S.W.2d 179

155 Tex. 270

Maurice J. LEHMANN et al., Petitioners, v. Anton KRAHL and Steve Krahl, Respondents.

No. A-5291.

Supreme Court of Texas.

Nov. 30, 1955.

Rehearing Denied Jan. 18, 1956.

Davis, Clemens, Knight & Weiss, George H. Spencer, Robert D. O'Callaghan, James L. Drought, Dilworth & McKay, W. Pat Camp and Walter Stout, San Antonio, Bracewell & Tunks and Joe H. Reynolds, Houston, for petitioners.

Fuchs & Riedel and Schleyer & Bartram, New Braunfels, for respondents.

GARWOOD, Justice.

This is a will contest. The trial court judgment in favor of the proponents, Lehmann et al. (our petitioners here) was reversed and remanded by the San Antonio Court of Civil Appeals. 277 S.W.2d 792. The stated grounds or theories of the reversal, which we must review, were: (a) that the will was invalid under Art. 8283, Vernon's Tex.Civ.Stats.Ann., ¹ one of the two witnesses being not 'credible', because he was at all revelant times the husband of a legatee, thus a necessary party to a contest of the will, thus a 'party' under the so-called 'Dead Man Statute', Art. 3716 ² and accordingly incompetent to testify in such a proceeding as to the execution of the will; (b) that certain jury argument of counsel for one of the several proponents was improper and prejudicial in its reference to the fact that the proponent Lehmann and sundry other parties were barred by Art. 3716 from testifying.

As to theory (a), no decision of this Court has yet sanctioned the final conclusion thereof, although we have sustained the premises from which it is said to follow. In decisions cited by the Court below, we have held that the husband of a legatee is a necessary party to the will contest by virtue of our statutes governing parties to suits involving the separate estate of the wife, Arts. 1983 to 1985, Vernon's Tex.Civ.Stats.Ann., and that, as such party, he is within the inhibition of Art. 3716. On the other hand, where the bequest is to the husband, we hold the wife to be without the terms of Art. 3716, since there is no statute requiring her joinder in suits concerning the separate property of the husband. Mitchell v. Deane, Tex.Com.App., 10 S.W.2d 717; Ragsdale v. Ragsdale, 142 Tex. 476, 179 S.W.2d 291.

As evidenced by other decisions cited by the Court below, we have also held that the word 'credible' in Art. 8283, supra, does not mean 'worthy of belief', but rather, 'competent' or 'able to tell about the attestation.' (277 S.W.2d 794.) None of these decisions, however, went so far as to hold that this competency meant competency with reference to Art. 3716, supra. Actually they all resulted in probating the respective wills in question, and none of them dealt with Art. 3716, except Gamble v. Butchee, 87 Tex. 643, 30 S.W. 861, 862. The latter, in answering certified questions in a will contest, held that the wives of the legatees in question were valid witnesses to the will, notwithstanding Art. 3716, 'for the reason that the property to be received by the husbands would be their separate property'.

Thus, if we follow the court below, we carry a step further the present somewhat peculiar rule that the husband of a legatee is within the inhibition of Art. 3716, while the wife of a legatee is not, the new proposition being the equally paradoxical one that the husband is not a 'credible' witness to a will under Art. 8283, supra, while the wife is. And the latter result would rest on the same rather legalistic ground as the former, to wit, that by legislative command, a husband must be joined as a party in suits concerning his wife's separate property, although he has no more nor less interest in the outcome of the suit than the wife would have in a suit over his separate property.

Evidently there is a definite policy underlying the requirement of the husband's joinder, and the lawmakers did not see fit to repeal or modify it when they purported to give the wife the right of 'sole management, control, and disposition of her separate property, both real and personal' by Acts 1913, Reg.Sess., Ch. 32, p. 62. See Art. 4614, Vernon's Tex.Civ.Stats.Ann. In fact, the last mentioned article and others expressly require the joinder of the husband in specified business transactions of the wife concerning her separate estate. Thus our holding that the husband is a necessary party to suits concerning the wife's separate estate is obviously unassailable, since it is exactly what the statutes provide. Wade v. Wade, 140 Tex. 339, 167 S.W.2d 1008.

But the same can hardly be said of the decisions holding the husband, as such statutory necessary party, to be within the inhibition of Art. 3716. The latter provision, being by way of exception to the general provisions abolishing common law disqualification of witnesses for interest, Arts. 3714, 3715, has properly been construed strictly so as to limit its exclusionary effects. Ragsdale v. Ragsdale, supra. True, it has been said, in holding the wife to be a competent witness under Art. 3716 in a suit concerning the separate property of the husband, that her potential interest as a community member in future rents and profits therefrom is not a material factor. Mitchell v. Deane, supra. But obviously this is not to say that the word 'party' in Art. 3716 must be given a literal construction so as to include those who are purely nominal parties in the sense of lacking any property interest in the outcome of the suit. On the contrary, it is held that one who is a party, but without any material interest in the suit, may testify just as if he were not a party at all. Ragsdale v. Ragsdale, supra; Markham v. Carothers, 47 Tex. 21; Eastham v. Roundtree, 56 Tex. 110; Oury v. Saunders, 77 Tex. 278, 13 S.W. 1030.

In the Ragsdale case, supra, which was a dispute within the scope of Art. 3716, we applied this rule to a party-witness who disclaimed as to the property in suit because he had transferred it to his children, who were also parties, with the admitted object of thereby making himself a competent witness, for their benefit, as to certain transactions with or statements of the deceased. We said that the motives and other circumstances incident to the transfer by the disclaiming witness were relevant only on the point of whether the transfer actually divested his interest in the property or was a mere pretense. In the same case another disclaiming party-witness had testified by deposition at a time preceding his disclaimer, although he had then actually conveyed his interest in the property in suit to his grandchildren. We held that, although the time of giving testimony (as distinguished from the time of trial) is the time to be considered in determining the witness' competency, and although the party-witness had not at that time disclaimed, his testimony was yet admissible. The determining factor is thus, not the formality of disclaimer, still less formal dismissal from the suit, but the lack of a property interest in the subject matter. ³

Less apposite but relevant is the further holding, in a suit within the purview of Art. 3716, that where the decedent in question had in his lifetime testified in the same suit as to a particular transaction, even an admittedly interested party may give testimony as to the same transaction, although the statute itself states no such exception. Runnels v. Belden, 51 Tex. 48. There Art. 3716 was given a liberal or 'common sense' construction so as to permit testimony which was not inconsistent with the exclusionary objects of the statute, although prohibited by its literal terms.

These decisions last above discussed appear to us to be inconsistent with those excluding the testimony of the husband as a 'party' under Art. 3716 in suits concerning the wife's separate property and relied upon below. The latter are Leahy v. Timon, 110 Tex. 73, 215 S.W. 951; Parks v. Caudle, 58 Tex. 216; and the Courts of Civil Appeals decisions in Garcia v. Galindo, 189 S.W.2d 12; Krause v. Krause, 186 S.W.2d 106; Davis v. Roach, 138 S.W.2d 268; and perhaps other cases. Since, as clearly held in Mitchell v. Deane, the potential interest of one spouse in future income from separate property of the other is immaterial, the husband certainly has no more interest in the result of the suit than does an erstwhile interested party who has donated his interest to his own children (also parties) in order to qualify himself to testify in their behalf. He is simply a nominal party. The fact that the statutes require him to join or be joined does not give him an interest, such as makes parties 'necessary' in the usual sense. The exclusionary object of Art. 3716 is not directed against parties with no real interest. In Wade v. Wade, supra, we held a wife's petition sufficient although her husband expressly joined 'pro forma'. In fact, by the very terms of Art. 1983, supra, the wife may sue alone for her separate property, with court permission, if the husband refused or neglects to join.

In the latter connection, the San Antonio Court of Civil Appeals was no doubt correct when it said, in effect, in Garcia v. Galindo, supra, that the legislature was not thinking of Art. 3716 when it enacted Art. 1983. But since, where the wife sues alone with court permission, the husband clearly would not be a party nor have any more interest in the suit than the wife would have in a suit by the husband for his own separate property, it is hard to see how in the former case he could fall within the ban of Art. 3716. If he would not, and we have evidently never held that he would, and if he be incompetent when he does join the wife's suit, we have the additional 'technicality' of the husband being able to make himself incompetent or competent by joining or refusing to join. Gertainly Art. 1983 does not specify that, although not in fact a party, where the wife sues alone, he shall yet be considered as a party; nor can it be reasoned that the wife represents him in suing alone, since he...