McIntosh v. Moore.

• Decision Date: 25 October 1899
• Citation: 53 S.W. 611
• Parties: McINTOSH v. MOORE.
• Court: Texas Court of Appeals

53 S.W. 611

McINTOSH v. MOORE.

Court of Civil Appeals of Texas.

October 25, 1899.

Appeal from district court, Brazos county; W. G. Taliaferro, Judge.

Application by C. F. Moore, as executor, to probate an alleged will as the last will of David McIntosh, deceased. From a judgment of the district court affirming a judgment of the county court admitting the will to probate, Mary McIntosh, widow of deceased, appeals. Reversed.

Ford & Ford, for appellant. A. C. Brietz, A. G. Board, Doremus & Butler, and Hudson & Nall, for appellee.

NEILL, J.

This is a proceeding which was instituted in the county court by the appellee to probate the will, and codicils attached thereto, of David McIntosh, deceased. It was alleged in the application that the will could not be produced by the applicant. The application was contested by Mary McIntosh, the surviving wife of the alleged testator. A judgment was entered in the county court admitting the will to probate, from which an appeal was prosecuted by the contestant to the district court, where a like judgment was entered, from which we have this appeal.

It seems to be admitted by the parties that the alleged will and codicils were duly executed in conformity with the statute. The other issues in the case made by the pleadings are: Was the will destroyed by the testator, or in his presence at his instance? If so destroyed, was the testator of sound mind at the time of its destruction? If destroyed by him, though he may have been of sound mind at the time, was he unduly influenced to destroy it? The will and codicils were executed prior to the marriage of Mr. McIntosh to the contestant, and the undisputed evidence shows that it was in existence subsequent to the marriage. The testator was 80 years old when he married appellant, and had never been married before. The will in question was executed about the 8th day of June, 1896; the first codicil, about the 5th of February, 1897; and the second codicil, on the 11th day of April, 1897. By the first codicil there was devised to appellant (then Miss Mary Campbell) a certain lot in the city of Bryan, with all the improvements thereon; and by the second codicil, in addition to the former bequest, he willed her a lot on which was situated a storehouse in said city. By the alleged will the principal part of deceased's estate was bequeathed to Frank M. Myers and Belle Everhart, his nephew and niece, and to Frances O. Chew, J. W. Chew, Jr., and Sarah W. Chew, the children of deceased's niece, Mary Chew, who are next of kin and heirs at law of the alleged testator. The appellee, C. F. Moore, was appointed executor of the alleged will. On the 8th of May, 1897, Mr. McIntosh, by deed of that date, conveyed to his wife the two pieces of property which he had before bequeathed her by the codicils, and in addition the lot on which he lived. After the death of the testator, though diligent search was made, the will could not be found; and the appellant testified upon the trial that it was not in her custody, and that she had not seen it for some time prior to her husband's death. The evidence shows that it was in his custody, and he had access to it, during all the time it was shown to have been in existence. There is no direct proof of the destruction of the will by the testator or by any one else, but facts were testified to from which it might be inferred that the instrument was burned by him.

Upon the trial a witness testified that, some time after the marriage of David McIntosh to appellant, he (McIntosh), in speaking to the witness about his marriage, stated that he (McIntosh) was an old fool, and, when asked by the witness how he came to marry, replied that he did not know anything about it, and that they hypnotized him, and, when asked by the witness who, McIntosh replied, "Ah! that is the question." Another witness testified that McIntosh, after his marriage, told him that he had no recollection of ever signing any deed to his wife, and that then he thought awhile, and said: "Yes; I remember having signed something, but I have no recollection of what I was signing, or what I was doing, and I have no recollection of marrying;" and that, in the same conversation, McIntosh said that he had been robbed and hypnotized. Mr. A. C. Brietz, an attorney at law, testified that, when McIntosh came to consult him about bringing the suit to set aside the deed to land made by him to his wife, he (McIntosh) said: "That infernal Campbell woman is about to rob me of everything I have got. Look here. I have just picked up this deed at the house. I found it there, and it conveys my old home to Mrs. McIntosh, and I never made such a deed as that. I never meant to convey my old home to her. I want her to have what the will calls for, but I want her to deed me my old home back. I have spent $700 or $800 on that place, and, though it is my property, here I find the deed conveying the property to her." All this testimony was admitted over the objections of appellant's counsel that it was hearsay, irrelevant, and immaterial on any issue in the case, and calculated to prejudice the minds of the jury against contestant. The rule is well established that the declarations of a testator are admissible to prove the condition of his mind at the time the will was made. In this case the condition of the alleged testator's mind during the period of time that his supposed will must be presumed to have been destroyed, from its nonproduction, after diligent search, subsequent to his death, is the subject of inquiry; and his acts and declarations made during and just prior to that period are admissible, not as evidence of the truth of the facts stated by him, but as external manifestations of his mental condition. Such declarations ought to have some direct connection with, and tend to show, the condition of the mind at the time the supposed will was destroyed. But the period of time over which such declarations may extend depends much on the character of the unsoundness of the mind alleged to be proved. Schouler, Wills, § 193; 11 Am. & Eng. Enc. Law (1st Ed.) p. 156; Kennedy v. Upshaw, 64 Tex. 411. The character of unsoundness of the alleged testator's mind, sought to be established in this case, was such as may be brought about from the infirmities consequent to old age; and, in view of this, we do not think that the acts and declarations of Mr. McIntosh, testified to, were too remote from the time the will must have been destroyed by him, to be admitted as evidence of his mental condition at that time.

David McIntosh, a short time after executing the deed conveying the two lots bequeathed his wife, as well as the one on which he lived, became dissatisfied, and retained counsel to institute suit against appellant for a divorce, and to cancel the deed upon the ground of fraud. Upon learning this, Mrs. McIntosh employed W. H. Nall, an attorney at law, as her counsel to advise her in reference to the threatened litigation, and to represent her in the event the suit should be commenced. From that time on until some time in July, when Mr. McIntosh finally abandoned his intention to bring the suits, Mr. Nall was appellant's counsel in the matters involved in the threatened litigation, but was not her attorney in any other matter. During this time she freely consulted him, and he advised her, in relation to the matters involved in the prospective litigation. Mr. Nall, as a witness for appellee, was permitted to testify, over the objection of appellant that the communication was privileged: That on one occasion while Mrs. McIntosh was in his office to consult him about the contemplated suits, in which he had been employed by her several months before, she asked him what would be the legal effect of the destruction of the will of David McIntosh, and that he informed her that, "if it was destroyed by the testator when in his right mind, it would amount, in law, to a revocation, otherwise not; that, if any one else destroyed it, it would not affect the will, unless it was so destroyed in his presence and by his direction." That on this occasion she seemed to be very nervous and excited, and before she asked the question she got up, went to each window in the office, and looked out, as if looking for some one. The action of the court in overruling appellant's objection and admitting this testimony is assigned as error. The necessities of a client compel him to repose unlimited confidence in his counsel. If threatened with a lawsuit involving either his property or domestic relations, he is bound to disclose all the facts and circumstances that may possibly affect the litigation, however sacred they may be. As necessities of litigation compel confidence on the one side, the policy of the law requires fidelity on the other. This policy, which enjoins good faith on the part of the lawyer, shields the client forever from its violation. Justice cannot be administered without the aid of men skilled in jurisprudence, in the practice of courts, and in those matters affecting rights and obligations which form the subject of judicial proceedings. If such professional communications were not protected, no man would dare consult a professional adviser with a view to his defense or to the enforcement of his rights, and no man could safely come into a court either to obtain redress or defend himself. Greenl. Ev. § 238. "The protection given by the law to such communications does not cease with the termination of the suit or other litigation or business in which they were made; nor is it affected by the party's ceasing to employ the attorney and retaining another, nor any other change or relation between them, nor by the death of the client. The seal of the law, once fixed upon them, remains forever, unless removed by the party himself in whose favor it was there placed." Id. § 243. "No legal adviser is permitted, whether during or after the termination of his employment as such, unless...