McCannon v. McCannon

• Decision Date: 10 November 1927
• Docket Number: (No. 8975.)
• Citation: 2 S.W.2d 942
• Parties: McCANNON v. McCANNON et al.
• Court: Texas Court of Appeals

2 S.W.2d 942

McCANNON v. McCANNON et al.

(No. 8975.)

Court of Civil Appeals of Texas. Galveston.

November 10, 1927.

Rehearing Denied February 16, 1928.

Appeal from District Court, Harris County; W. E. Monteith, Judge.

In the matter of the estate of D. S. McCannon, deceased. Will contest by D. E. McCannon and others was carried by appeal to the district court, and judgment rendered refusing the will to probate. From such judgment, Mrs. Hannah J. McCannon appeals. Reversed and remanded.

Morris, Sewell & Morris and Cole, Cole & O'Connor, all of Houston, for appellant.

Homer E. Stephenson, of Houston, for appellees.

LANE, J.

On the 26th day of July, 1924, D. S. McCannon, now deceased, executed the following instrument:

                            "State of Texas, County of Harris
                

"Know all men by these presents:

"That I, D. S. McCannon, of Harris county, Texas, being of sound and disposing mind and memory, and being desirous to settle my worldly affairs while I have strength to do so, do make this my last will and testament, hereby revoking all others heretofore made:

"1. I desire and direct that my body be buried in a decent and Christianlike manner, suitable to my circumstances and condition in life.

"II. I desire and direct that my just debts be paid out of my estate without undue delay, by my executrix, to be hereinafter appointed.

"III. After the payment of all my just debts with which my estate is legally chargeable, then I devise and bequeath to my beloved wife, Hannah J. McCannon, a full one-half of all my property, real, personal and/or mixed, and of every kind and character whatsoever and wherever the same may be situated.

"IV. I devise and bequeath to my beloved children and their descendants as hereinafter stated, in equal shares, the other one-half of my property, whether real, personal and/or mixed, of every kind and character whatsoever, and wherever the same may be situated.

"(1) One share to my grandchild, Lowe Park Stanton, the wife of R. O. Stanton, of Numa, Iowa, she being the daughter of my deceased daughter, Jeanette McCannon Parks;

"(2) One share to my son, George T. McCannon, who lives in the Rio Grande Valley, Texas;

"(3) One share to my two grandsons, Carl and Lawrence McCannon, of Plano, Iowa, the surviving children of my deceased son, Robert McCannon;

"(4) One share to my son, Charles McCannon, of Marion, Iowa;

"(5) One share to my daughter, Cora B. Coleman, the wife of Charlie D. Coleman, of Olin, Iowa;

"(6) One share to my son Dan E. McCannon, of Beaumont, Texas;

"(7) One share to my son, LeRoy McCannon who lives in Texas;

"(8) One share to my daughter, Grace McDaniel, the wife of Harry McDaniel.

"I hereby provide that if any of my above children should die before I do, leaving surviving them child or children, that such child or children shall take the share which their father or mother would otherwise have taken had they been living when I die; and if through inadvertance or otherwise, I have not properly named the respective grandchildren hereinabove named, and should there be other grandchildren than those stated, or should their names be technically different than those stated, it is my desire that any surviving child or children of any of my children shall take the share which my child would take if alive.

"If any of my children should die before I die leaving no heirs of their body, then the share which they otherwise would have taken if alive at my death, shall go equally to such of my children or their survivors as may be alive at the time I die; no grandchildren in any event taking more between them than the share their respective parent would have taken if he or she may have been alive when I die.

"V. My estate consists principally of real estate in Harris county, Texas; and I have a vendor's lien note due me on my farm in Iowa, on which there is a principal amount at this time due of around seventy-four hundred ($7,400.00) dollars, and which note is in a bank at Numa, Iowa. By mentioning these my principal assets, I do not intend it to be an all inclusive inventory, but merely as a matter of record to set out where and of what my principal estate consists.

"VI. I hereby constitute and appoint my beloved wife, Hannah J. McCannon, as the independent executrix of this, my last will and testament, and direct that no bond or security be required of her as such executrix.

"VII. It is my will that no other action shall be had in the county court in the administration of my estate than to prove and record this will and to return an inventory and list of claims, when my estate shall be dropped from the docket.

                "In testimony whereof, I have hereto set my
                hand, at Houston, Texas, on this the 26th day
                of July, A. D. 1924.          D. S. McCannon
                "Signed, declared and published by D. S. McCannon
                as his last will and testament, in the
                presence of us, the attesting witnesses, who
                have hereto subscribed our names in the presence
                of said D. S. McCannon, at his special instance
                and request, this the 26th day of July
                A. D. 1924.             Robert L. Cole
                                       "Lena Killingsworth."
                

D. S. McCannon died in Houston, Harris county, Tex., on October 20, 1924. The will above shown was admitted to probate by the county court of Harris county over the contest of D. E. McCannon, made for himself and other heirs at law of D. S. McCannon, deceased; the contest being based upon the alleged lack of testamentary capacity on the part of the deceased and undue influence exercised over him by the proponent, surviving wife of the deceased. The contest was carried by appeal to the district court of said county.

The cause came on for trial in the district court before a jury, and on the 3d day of February, 1926, in answer to the one issue submitted to it, the jury found that D. S. McCannon, at the time he executed the instrument offered for probate, did not have sufficient mental capacity to understand what he was doing, to know the nature and extent of his property, the objects of his bounty, and the disposition made of his property.

Upon this finding of the jury, the court rendered judgment refusing the will to probate, and from such judgment Mrs. Hannah J. McCannon has appealed.

Appellant contends: First, that the court erred in refusing to admit the will to probate, in that there was no evidence which raised the question of lack of testamentary capacity of D. S. McCannon; and, second, that the answer of the jury to the sole issue submitted is so against the great weight and preponderance of the evidence as to be clearly wrong, and manifestly the result of passion, prejudice, and improper motive upon the part of the jury, and therefore the court erred in overruling appellant's motion for a new trial.

We are not prepared to reverse the judgment of the trial court, and here render judgment admitting the will to probate, as requested by appellant, but we think that the contention of appellant that the great weight and preponderance of the evidence is so clearly against the verdict of the jury that it should not be permitted to stand should be sustained, and that the judgment should be reversed and the cause remanded for another trial.

In determining whether the findings of the jury that D. S. McCannon, at the time he executed the instrument offered for probate, did not have sufficient mental capacity to understand what he was doing, to know the nature and extent of his property, the objects of his bounty, and the disposition made of his property, are so against the weight and preponderance of the evidence as to be clearly wrong, we should give but little, if any, probative force to testimony tending to show that the testator had said and done things as the result of mere idiosyncracies to which old people unfortunately often fall heir, or that such aged persons had suffered a lapse of memory to such extent that they could not readily recognize persons whom they had met but a short time theretofore. The acts of the testator connected with the execution of the will, the nature of the same, the reasonableness of its provisions under the circumstances surrounding the testator at the time of its execution, the ability of the testator to give in detail the nature and extent of his property, the objects of his bounty, and, as in the present case, the names of his living children and grandchildren, nine in number, and the places of their respective residences in several different states, should, we think, largely control the determination of testamentary capacity of the testator.

It must be kept in mind that the issue is, not whether the testator was, at the time of executing the will, of "sound mind," as that term is generally understood in its broadest sense, but whether or not he was capable at such time of understanding that he was making his will, the nature and extent of his property, the objects of his bounty, and the disposition he was making of his property. Imperfect memory, caused by sickness or old age, forgetfulness of the names of persons a testator has known, idle questions or statements, or requiring a repetition of information, will not be sufficient to establish incompetency, if he has sufficient intelligence remaining to understand the act he was performing, the property he possessed, the disposition he was making thereof, and the persons or objects of his bounty, as said in Von De Veld v. Judy, 143 Mo. 348, 44 S. W. 1117:

"The strongest and best proof that can arise as to a lucid interval is that which arises from the act itself of making the will. That I look upon as the thing to be first examined, and if it can be proved and established that it is a rational act, rationally done, the whole case is proved. What can you do more to establish the act? * * * Here is a rational act, rationally done. In my apprehension, where you are able completely to establish that, the law does not require you to go further."

In Huffnagle v. Pauley (Mo. Sup.) 219 S....