Maxey v. Queen, 14874.

• Decision Date: 31 October 1947
• Docket Number: No. 14874.,14874.
• Citation: 206 S.W.2d 114
• Parties: MAXEY et al. v. QUEEN et al.
• Court: Texas Court of Appeals

Page 114

206 S.W.2d 114

MAXEY et al. v. QUEEN et al.

No. 14874.

Court of Civil Appeals of Texas. Fort Worth.

October 31, 1947.

Rehearing Denied December 5, 1947.

Appeal from District Court, Dallas County; W. L. Thornton, Judge.

Proceeding in the matter of the estate of Mattie Jackson, deceased, on the petition of Ola May Maxey, joined by her husband, for the probate of decedent's will, contested by Charlie Queen and another. From a judgment denying probate, proponents appeal.

Affirmed.

Gladys Melton and Wm. Madden Hill, both of Dallas, for appellants.

Smithdeal & Lefkowitz and Shook & Shook, all of Dallas, for appellees.

SPEER, Justice.

This appeal involves a will contest. Ola May Maxey, joined by her husband, proposed the probate, in the County Court, Dallas County, Texas, of the will of Mattie Jackson, deceased. Arthur Queen and Charlie Queen contested the probate of the proposed will. Ola May Maxey is a sister, and Arthur and Charlie Queen are brothers of Mattie Jackson, deceased. The parties will be referred to in this opinion as proponents and contestants, respectively.

The County Court entered the proposed will for probate and contestants appealed to the District Court. The pleadings of all parties were amended in the District Court and the issues were tried de novo.

It is unnecessary to state in detail the nature of the respective pleadings, but it will suffice to say that proponents' amended pleadings in the District Court contained all necessary statutory requirements in such matters. The original application filed in the County Court alleged that the proposed will was filed therewith. It may be assumed that the instrument went to the District Court when the appeal was perfected. Contestants' amended pleadings in the District Court consist of many special exceptions, a general denial and special pleas, the latter being substantially the same as the special exceptions urged. The trial court overruled the special exceptions and tried the case on the amended pleadings of the parties.

The general denial of contestants was in the usual and customary form but bears this parenthetical clause, "except that the writing referred to and offered by petitioner was written by Mattie Jackson in her own hand, which is admitted."

The subsequent paragraphs of contestants' answer by way of special pleas are in substance: (a) That the proposed writing is not testamentary and therefore not a will because it does not purport to dispose of any property. (b) That the proposed instrument quoted by contestants as interpreted by the trial court does not contain language of testamentary intention, nor any words which could be properly construed to mean that the purported testatrix had a testamentary intention at the time of writing the document proposed as her will. The answer contained a photostatic copy of the proposed will.

A jury was demanded and empaneled in the District Court and the proposed will of Mattie Jackson was presented to a witness for identification as being in the handwriting of testatrix. Objection was made to the testimony upon the ground that contestants had admitted in their answer that the document was written wholly in the handwriting of testatrix. No definite ruling on the objection seems to have been made by the court, and the witness, a former assistant district attorney, said the instrument was in the handwriting of testatrix.

Contestants renewed their objections and the court remarked that the instrument had not been offered in evidence and counsel for proponents said they expected to offer it. The court then said: "When it is offered, the court will rule that it does not show on its face any testamentary intent." The court went on to state in that connection, substantially, that since contestants were objecting to testimony of all extraneous circumstances surrounding the matter, he would hear the testimony to be offered by proponents, without the presence of the jury, to enable him to pass on the objections in the absence of the jury. The jury was then sent by the court to their room. Proponents objected and excepted to the actions of the court and offered quite a bit of testimony to perfect their bills of exception and in an effort to induce the court to overrule the objections. In the absence of the jury proponents proved substantially that Mattie Jackson, deceased, was an illiterate Negro woman, having little or no educational advantages, had worked for white families as a domestic servant for many years; that her health had failed and her employers sympathized and respected her; that they took her to the hospital; that she sat in the hospital most of the day waiting for an assigned room; that none could be had that day; that while she sat waiting, she wrote something on a sheet of tablet paper; that deceased had told numerous persons prior to the day she was first taken to the hospital that she wanted proponent to have her property; that after she had written the document or script at the hospital she told others that she had fixed it so her sister Ola May would get her property if anything happened to her; that Mattie Jackson was returned to the hospital and died about seventeen days after she was taken there the first time.

The trial court declined to permit the testimony referred to by us to go to the jury, for the reason assigned by him at the time in this language: "Well, in the view the court takes of the law of the case, no purpose could be served by permitting the testimony to be heard by the jury, because the court, under this testimony, would instruct the jury to return a verdict. So, I can't see where anything could be gained by permitting the jury to hear it. Furthermore, the court is of the opinion that the instrument offered here is not a will, and does not contain on its face testamentary intent. Taking that view of the matter, the court would be compelled to sustain the objections of the defendant to the testimony offered, seeking to explain, or testimony giving the circumstances surrounding the execution of the instrument. * * *"

After the testimony was concluded, the court entered his judgment denying the probate of the proposed instrument. Omitting the formal parts and recitations of the appearances of parties, and the empaneling of the jury, the court found as a fact that the instrument proposed as the last will of Mattie Jackson, deceased, contained the following language, words and punctuations:

                                        "Dallas Texas
                

"I am sick in the horse pittle. I have been sice for some times have been able to get down to the corthouse I wont my deads male to my sister. Ola May Maxey.

                                 "Mrs. Mattie Jackson
                                 "6603 Lemmon Av."
                

The judgment goes on to recite that proponents called several witnesses, naming them, who proposed to testify that they had heard Mattie Jackson say in substance that she had fixed things so that Ola May Maxey would get her property. That contestants objected to the questions and answers and the court retired the jury and heard arguments on the admissibility of the testimony and that "the court was of the opinion that inasmuch as the paper offered for probate does not contain words showing that the writer intended to make a gift and does not express testamentary intention, parol testimony showing or tending to show that Mattie Jackson had said that she wanted her sister, Ola May Maxey, to have her property, or that she thought she had fixed matters so that Ola May Maxey would get her property, was not admissible because the Statutes of this State, when properly construed, deny testamentary effect to such parol declarations."

The judgment further recites substantially that after the court had ruled that the paper offered for probate was not a will and not a paper that can be converted into a will by parol testimony, proponents were allowed to call and examine witnesses out of the presence of the jury in order that a record might be made of all the testimony proponents would offer if the court should rule parol testimony admissible for the purpose of showing a testamentary intent that cannot be discovered in the language of the paper itself.

The judgment concludes with the formal decree denying the proposed document to be probated as the last will and testament of Mattie Jackson, deceased.

Proponents excepted to the judgment, gave notice of and have perfected this appeal.

Under an order of the Supreme Court equalizing the dockets of the Court of Civil Appeals, the case has been transferred to this court for determination.

Proponents (appellants) rely upon four points of error for reversal. In their brief, proponents group the first three points and summarize them as complaining of the court's refusal to permit them to introduce before the jury evidence respecting the facts and circumstances under which Mattie Jackson executed the instrument sought to be probated and her declarations prior and subsequent to its execution; and peremptorily discharging the jury without permitting it to hear the evidence, and in holding that the instrument, either considered alone or in the light of the facts and circumstances surrounding its execution, did not evidence testamentary intent on her part.

The fourth point complains and assigns error because the court refused to admit the proposed instrument to probate, assigning as a reason, because testamentary intent was shown upon the face of the instrument and from the undisputed facts of all the surrounding circumstances under which deceased executed the instrument as shown by the testimony offered by proponents and excluded by the court from the jury.

In the view we take of this entire record, we think there are only two material questions presented for our determination. They are: (1) Does the document as interpreted by the court on its face express a testamentary...