McClain v. Adams

Decision Date15 January 1941
Docket NumberNo. 2340-7579.,2340-7579.
Citation146 S.W.2d 373
PartiesMcCLAIN et al. v. ADAMS. In re DOUGLASS' ESTATE.
CourtTexas Supreme Court

The subject matter of this litigation is an alleged nuncupative will. Annie Douglass, deceased, was the alleged testator; Willie Adams, defendant in error, was the proponent in the probate court; and Eliza McClain and others, plaintiffs in error, the next of kin of the deceased, were the contestants. The county court of Jefferson county sustained the contest and denied the probate. On appeal the district court of that county entered judgment admitting the alleged will to probate, which judgment was affirmed by the Court of Civil Appeals. 126 S.W.2d 61.

One of the requisites of a nuncupative will, as prescribed by article 3346, R.C.S., is that, "it be made in the time of the last sickness of the deceased." As we understand the position of plaintiffs in error, they concede that the trial court was warranted in finding that all other statutory requisites of a nuncupative will were met and complied with. Their sole contention here is that, as a matter of law, the words uttered by the deceased which are claimed to constitute her will were not uttered during her "last sickness" within the meaning of those words as used in the article above referred to. The case turns upon our decision of that single question and our statement will therefore be limited to such facts as are thought to be relevant thereto.

Annie Douglass, the alleged testator, died on September 8, 1934, at the age of more than sixty years. During the four years next preceding her death she had "spells". Dr. R. N. Miller, a witness for the proponent, began attending her professionally in June, 1934. In his opinion the original cause of her condition was malaria, but the immediate cause of her death was "aortic insufficiency," which he explained to be a weakened condition of the heart and aorta. The "spells" about which the other witnesses testified were in the nature of fainting spells brought about, according to the evidence as we understand it, by the general weakened condition of her heart. The words claimed to constitute a nuncupative will were spoken by the deceased at about 4:30 p. m. on Thursday, September 6, 1934. The proponent and four other witnesses were present in her bedroom at that time. One of the witnesses, Berttrue McDaniel, went to the home of the deceased to pay her some rent. He testified that he stayed there about two hours, and that while he was there she said to him:

"`Mr. McDaniels, I am feeling not very well at this time, and I know that I am going to die,' and says `I want Willie Adams to have everything that I possess, and land and money.' She says `She is the only one stood to me in my sick hour at my bedside.' Says, `I haven't any relatives at all.'"

"She called your name and said that?

"Yes, sir, said `Mr. McDaniels.'"

Thereafter, on September 12, 1934, the witness committed the substance of the testimony to writing, his written memorandum being as follows:

                     "`Beaumont, Texas, Sept. 12, 1934

"`On the 6 day of September, 1934, I was at Annie duglas home and she told me and others beside that at her death she wanted Willie Adams to have all that she had land and money and every thing else that she new she was going to die that she had no kin and she was the only one that sat at her bed side and waited on her and she wanted her to have all her estate at her death

                                "`Berttrue McDaniel.'"

He testified that when he went to the home of the deceased he found her in bed; that when he paid her the rent she handed him a receipt therefor which she had theretofore written. His testimony with regard to what occurred on the occasion is, in the main, corroborated by the other witnesses who were present at that time. There is practically no testimony concerning the condition of the deceased from Thursday afternoon until about noon on Saturday. The proponent testified that "she had taken the bed on a Thursday. Friday she was in and Thursday she taken the bed and stayed in bed from Thursday up to Friday." That testimony probably means that deceased did not leave her home on Friday but was in bed at least a part of that day. Shortly before noon on Saturday morning the deceased went to the home of a neighbor, Julia Keegans, to get Julia to pay a water bill for her which amounted to $1. Deceased had only a $5 bill with her and Julia was unable to change it. Deceased next went to a grocery store near by and purchased some bacon and a small sack of flour. She then returned to Julia's home and gave her $1 with which to pay the water bill. At that time she discovered that she had failed to bring the bill with her, whereupon Julia accompanied her home to get it. The deceased carried the bacon and Julia carried the flour. Shortly after reaching home the deceased became sick. Dr. Miller was later called and he came to see her about 6 o'clock that evening. She died some two hours or more thereafter.

All text-writers and opinions on the subject of what constitutes "last sickness" within the meaning of statutes relating to nuncupative wills seem to agree that the leading authority upon the question is Prince v. Hazleton, 20 Johns., N. Y., 502, 11 Am.Dec. 307. Of that case the author of Redfield On The Law of Wills, 4th Ed., in Vol. 1, ch. VI, Sec. 17a wrote: "* * * This subject came before the Court of Errors in New York, at an early day, * * * and is most exhaustively discussed by Chancellor Kent, and by Mr. Justice Woodworth. These opinions contain the substance of all the learning upon the subject of nuncupative wills, from the earliest days to that date and very little has occurred since, which could add much to the very full...

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4 cases
  • In re Estate of Alexander
    • United States
    • Texas Court of Appeals
    • January 30, 2008
    ...will. The rule in Texas has long been that the testator must be "in extremis" to make a valid nuncupative will. McClain v. Adams, 135 Tex. 627, 146 S.W.2d 373, 375 (1941). "[A] nuncupative will is not good, unless it be made by a testator when he is in extremis, or overtaken by sudden and v......
  • Dabney v. Thomas
    • United States
    • Texas Court of Appeals
    • January 24, 1980
    ...rule" as applicable to this type of a will. The authorities were collected and analyzed by Judge Hickman in McClain v. Adams, 135 Tex. 627, 146 S.W.2d 373, 374-375 (1941), where he "From the foregoing we conclude that early in the jurisprudence of this state the majority rule that the testa......
  • Hargis v. Nance
    • United States
    • Texas Supreme Court
    • October 29, 1958
    ...will to probate must be of the clearest and most convincing character. Lewis v. Aylott's Heirs, 45 Tex. 190, 200; McClain v. Adams, 135 Tex. 627, 146 S.W.2d 373, 375; Page on Wills, Vol. 2, § 902; In re Yarnall's Will, 4 Rawle, Pa., 46, 26 Am.Dec. 115, 121 ('Unless the court is morally cert......
  • Nance v. Hargis, 10550
    • United States
    • Texas Court of Appeals
    • February 26, 1958
    ...Futch and the testimony as given by Dr. Holland, Dr. Futch and Mrs. Hewett. The latest case we have had cited to us is McClain v. Adams, 135 Tex. 627, 146 S.W.2d 373, Commission of Appeals of Texas, Section A, opinion adopted by the Supreme Court, which sets out appropriate provisions of a ......

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