Matlock v. Matlock

• Decision Date: 19 December 1951
• Docket Number: No. 10002,10002
• Citation: 245 S.W.2d 536
• Parties: MATLOCK v. MATLOCK.
• Court: Texas Court of Appeals

Page 536

245 S.W.2d 536

MATLOCK v. MATLOCK.

No. 10002.

Court of Civil Appeals of Texas, Austin.

Dec. 19, 1951.

Rehearing Denied Jan. 9, 1952.

Woodruff & Holloway, Brownwood, Sam McCollum, S. W. Hughes, both of Brady, R. R. Holloway, Brownwood, of counsel, for appellant.

Senterfitt, Crump & Jameson, San Saba, for appellee.

HUGHES, Justice.

This is a will contest. The testator was J. M. (Jim) Matlock. Appellant, Mattie Matlock, is the widow of testator and sole beneficiary under his purported will. Raymond Matlock, appellee, is the contestant and is the son and only surviving child of testator by a former marriage. Appellant and testator had no children.

This suit was originally instituted in the County Court of San Saba County and from a judgment admitting the will to probate an appeal was taken by appellee to the District Court of San Saba County. A jury trial in that court resulted in a verdict that testator was of unsound mind on May 29, 1945, the date of the purported will.

In accordance with this verdict judgment was rendered annulling the judgment of the County Court admitting the will to probate and cancelling other orders made by that court in connection with the will.

Appellant makes only one assignment of error which is that the verdict of the jury is so contrary to the great preponderance of the evidence that it should be set aside.

J. M. Matlock died December 29, 1949, at the age of 69. He and appellant had been married to each other for about 40 years. All of the property which they owned had been acquired by them during the marriage and belonged to the community estate. The extent or value of the estate is not shown but for the most part it seems to have consisted of land and livestock.

Testator and the mother of appellee were divorced when he was about six years old and appellee, as a child, lived with his mother. He is now married having two children, a girl 29 and a boy 26. He has lived in Houston for the past 28 years and visited his father in 1917, '19, '21, '23, '35, '39, '45, '46, '48 and '49.

The will in question was signed on May 29, 1945, in the office of J. K. Baker, a prominent attorney of San Saba who was deceased at the time of this trial. Present when the will was signed were testator, his wife, Judge Baker and the two witnesses to the will A. L. Taylor and E. E. Fagg.

On the same date and on the same occasion appellant executed a will before the same witnesses by the terms of which she left all of her property to her husband, Jim Matlock.

We have carefully read the entire statement of facts and will now, as briefly as possible, summarize the relevant testimony of appellee's witnesses.

Raymond Matlock appellee:

Witness attributed the following statements to appellant regarding his father's condition from "47 or '45 on':

'Well, she said that she couldn't hardly understand how he was talking, and said he was in a bad shape, and such things as that, said she couldn't do anything with him and he wouldn't do what the doctor told her to do-doctor may tell her today to keep him in bed, and said he wouldn't do it.

'* * * I don't know exactly what I should give about the exact words that was carried on there, but it was along those lines, about the condition he was in, he didn't want to do what he was told, and such things as that. He wasn't able to do anything, if that's what you--. Said she had to have somebody to do the work, and she had someone hired to do that.'

Appellee was not asked his opinion of his father's mental capacity.

Clemuel P. Gober:

Mr. Gober had known decedent since he, witness, was a small boy and had worked for him at various times, including April, 1945, when the following incident occurred: 'Well, the three of us were riding, and we met at a field fence on the south side of the pasture, the Dr. Matlock place-on the Susan Matlock place, and we had met there to start back to the house, and after meeting and deciding there was no further use to ride, we started to the house, and we were riding along in single file, I believe Mr. Matlock ahead of us, and he started to sway in the saddle. He first fell kind of forward, then he began to lean back, and we saw that he was going to fall, and got off our horses to help him, stop him from falling, and we laid him on the grass and kept him there until they brought a car. * * * when we pulled him out of the saddle, he had a death grip on the horn of the saddle, and his eyes were without expression, they were set in his head, and he was very pale, and seemed to be breathing hard.

'Q. I'll ask you to state whether or not he was able to converse with you at that time? A. No, sir, he was not.'

This witness had no 'more dealings' with decedent after this incident and was not asked to express an opinion as to his mental capacity.

Earl Stover:

This witness had known decedent for 41 years and since 1940 had worked for him a few weeks at the time about twice a year. He testified to the same incident related by Mr. Gober, differing only in minor details. On the night of this incident witness saw decedent again and testified:

'Q. And I will ask you to describe for us what his physical condition apeared to be at that time? * * * A. Well, I had noticed his mouth being drawn, but I don't know particularly that night.

'Q. When you had noticed it, was it prior to this occasion or after this occasion that you noticed his mouth being drawn? A. After.'

This witness also saw decedent after he was 'up and around from this illness' and concerning his physical condition at that time testified:

'A. Well, he was short-winded, and moe disabled, seemed like.

'Q. By 'disabled', could you describe for us just what type of disability, and how it appeared to you? A. Well, more or less, he didn't seem like he-he didn't care for his stock, or something like he should, conversations were broken, seemed like a little.

'Q. In his conversations, I will ask you to describe how his words were formed with regard to plainness or otherwise. A. Well, Jim Matlock, knowing my age, he would probably mention things that maybe happened before I was born, and something like that, I shouldn't know.

'Q. Was he able to speak distinctly? A. Well, not exactly.'

This witness also testified that following this illness of decedent he seemed to lose interest in his business and neglected the feeding of his cattle and that he carelessly let a calf attack him. Mr. Stover also testified:

'Q. Earl, I will ask you to state whether or not you have ever had occasion to observe Mr. Matlock meeting people coming on his place with a shotgun in his hands? A. Well, I have a few times, yes.

'Q. Well, describe what happened on those occasions, just how-- A. Oh, just more or less drive up, why, when you came up, why, that would be the first thing you would see was probably a gun sticking out around the door facing, or something like that.

'Q. State whether or not he actually aimed a gun at anybody on those occasions that you observed. A. Well, I wouldn't think so.'

This witness was unable to express an opinion as to the mental capacity of decedent on the date of the will's execution.

On cross-examination it was developed that this witness worked for decedent following the 1945 illness and had had many conversations with him.

Clark Matlock, brother of decedent:

This witness lived in Brownwood and visited decedent about twice a year since 1921. He testified:

That he visited testator in 1943 and 'it seemed to me like he had had a stroke of paralysis; that his physical appearance was bad * * * he couldn't hardly walk in his right leg. His hands were useless to him * * * and * * * the corner of his mouth was drawed down * * * it was drawed about enough whenever he would go to drink milk, it would run down the corner of his mouth on that side, it would run down inside his shirt at times.'

Witness next saw testator in 1945 and said his condition was worse. He could hardly understand his speech. 'It seemed like his tongue was thick'; that 'he would be carrying on a conversation with you and he would just-well, say, maybe when he would start talking again he would be talking about something else. He was forgetful, that's what I would call it.'

He testified that testator had crying spells, for no apparent reason, which would last 4 or 5 minutes and that those spells occurred every hour. On this visit witness testified that testator would wake him three or four times during the night to show him an old pistol.

In 1946 witness visited testator again and when asked concerning his physical condition at that time stated that it was 'about the same proposition.'

Witness said that appellant made the following statements regarding her husband: 'Well, she tole me in 1946, sometime in 1946, Jim was getting in bad shape. Jack Guthrie at that time, him and his wife were sitting with her, and I told her, I said, 'Now, if you get to need any help to take care of Jim, let me know' and she said she would. She said, 'Jim is getting in bad shape, and Jim is getting dangerous.' * * * I couldn't give you the date, but she told me Jim was getting 'plumb' dangerous, and she wished something could be done about them old guns around there.'

The date of this last statement was later fixed as early 1948 or late 1947.

This witness further testified:

Q. Now, Mr. Matlock, based upon what you have just testified to and your observations of your brother, I will ask you to state what your opinion of his mental state was along about May 29, 1945? A. I think it was bad.

'Q. By bad-could you elaborate on that a little bit? A. Yes, sir, I don't think a man that is at himself, that is just exactly right in every respect, will sit down and break down and cry before folks.'

On cross-examination he witness testified:

'Q. Now, as a matter of fact, don't you know this to be a fact, that it was in 1948 he had that paralysis? A. No, no. He had some kind of spell in 1945, like to fell off a horse down...