McWhorter v. Humphreys

• Decision Date: 06 November 1941
• Docket Number: No. 5852.,5852.
• Citation: 161 S.W.2d 304
• Parties: McWHORTER v. HUMPHREYS et al.
• Court: Texas Court of Appeals

Page 304

161 S.W.2d 304

McWHORTER v. HUMPHREYS et al.

No. 5852.

Court of Civil Appeals of Texas. Texarkana.

November 6, 1941.

On Rehearing February 19, 1942.

Further Rehearing Denied March 12, 1942.

Appeal from District Court, Upshur County; Bascom Gist, Judge.

Consolidated will contest and other proceedings by M. D. McWhorter against Jewell Humphreys and others. From an adverse judgment, plaintiff appeals.

Affirmed.

R. B. Howell, of Winnsboro, Otis Dunagan, of Gilmer, and Jones & Jones, of Mineola, for appellant.

Florence, Florence & Meredith of Gilmer, for appellees.

WILLIAMS, Justice.

J. C. Humphreys, who will be styled the deceased, in January, 1907, married Mrs. Mattie McWhorter, a widow. Appellant, Merkel D. McWhorter, then a boy of tender years, is her only child. She died March 20, 1935, leaving a will, dated July 3, 1931. Under its terms she bequeathed all her property "to my beloved husband, J. C. Humphreys, and my beloved son, Merkel McWhorter, share and share alike," and named her husband independent executor without bond. On January 1, 1939, deceased married Mrs. Jewell Eitel, a widow. He became seriously ill on January 21, 1939, and died in Pritchett, Upshur County, Texas, June 2, 1939, at an age past sixty-five. He never had any children. Appellant, M. D. McWhorter, filed in the county court an application to probate as the last will of deceased an instrument dated April 13, 1935. Under this instrument deceased bequeathed his entire estate to appellant. It contains a clause, namely, "* * * hereby revoking any other provisions which might have been heretofore made for such disposition" of his estate. Mrs. Jewell Humphreys, the surviving wife of deceased, also filed an application to probate as the last will of deceased, an instrument dated April 5, 1939. Under its terms, after a bequest of a 40-acre farm to his friend and nurse, Luther Dawson, he bequeathed to Jewell Humphreys, if living, and if not, to her two children by a former marriage, all his property of every nature; naming her executor without bond. This will contains a clause, namely, "* * * hereby revoking all wills by me at any time heretofore made." Mrs. Dorothy Shaver and husband answered in each of above causes and pleaded an instrument dated February 19, 1938, as being the last will of deceased, in which he bequeathed to Mrs. Shaver, a niece of his first wife, certain real estate. Above causes were consolidated in the county court. In a trial to that court, in which the issues of undue influence and lack of testamentary capacity were set up, the instrument of April 5, 1939, was admitted to probate. McWhorter and the Shavers duly perfected their appeal to the district court. Subsequently, McWhorter filed suit in the district court against Mrs. Jewell Humphreys, Luther Dawson and the Shavers, which suit later was consolidated in the district court with the consolidated action out of the county court. The Shavers did not appear in the district court. All litigants except the Shavers filed amended pleadings in the consolidated action.

Under above amended pleadings, appellant again sought probate of the 1935 will, and appellees sought probate of the 1939 will. Appellees contended that the 1939 will revoked the 1935 will. Appellant again in his pleading raised the issue of undue influence and lack of testamentary capacity. Pleading further, he alleged that there belonged to the community estate upon his mother's death, real and personal property of the value of $40,000, except the sum of approximately $5,000 which was the separate estate of his mother; that she left the first above mentioned will, giving its terms; that this will was admitted to probate upon J. C. Humphreys' application for its probate and that he had taken full possession and control of that portion of the estate so devised to him under said will, enjoying and appropriating same to his (J. C. Humphreys') own use; "that on or about the 1st day of June A. D. 1931, the said J. C. Humphreys and his wife, Mrs. Mattie Humphreys entered into an agreement by the terms of which" his mother was to execute a will bequeathing one-half her estate to J. C. Humphreys and the other half to plaintiff; "at said time or prior thereto the said J. C. Humphreys contracted and agreed with his said wife, Mrs. Mattie Humphreys, that if she would execute such a will, that he * * * would execute a will devising and bequeathing his entire interest in the community estate to her, and in the event that the said Mrs. Mattie Humphreys should die before him, * * * then he, * * * would at his death devise and bequeath to plaintiff, * * * all of the property which he, the said J. C. Humphreys, might die seized of." That thereafter, on the 3rd day of July 1931, in pursuance of such an agreement theretofore made, the said Mrs. Mattie Humphreys did "execute the will with its terms first above set out;

"That he has reason to believe and here charges it to be a fact, that, in pursuance of said agreement, theretofore made, the said J. C. Humphreys, did on or about the last mentioned date execute a will, by the terms of which he devised all of his property to the said Mrs. Mattie Humphreys. * * *

"Plaintiff would further show the Court that in pursuance of said agreement so made between the said J. C. Humphreys and his deceased wife, Mrs. Mattie Humphreys, the said J. C. Humphreys did on the 13th day of April A. D. 1935, execute a valid will by the terms of which he devised and bequeathed to this plaintiff all of the property, real, personal or mixed, wherever situated which he might own at the time of his death. * * *

"Plaintiff says that, by reason of the aforesaid contracts and agreements made and entered into between the said J. C. Humphreys and his deceased wife, Mrs. Mattie Humphreys, and by reason of the fact that the said J. C. Humphreys accepted the benefits of the will of his said wife, and probated said will, and by reason of his use, control and dominion of the property which he acquired under and by reason of said will, that he and those who claim under him, are now estopped from claiming said property under any kind of a will, save and except such an one as he agreed with his wife, Mrs. Humphreys, to execute."

Another count in plaintiff's amended petition alleges a trespass to try title action and describes personal property and various tracts of land.

In addition to a general demurrer and denial, special exceptions, and a plea of not guilty, appellees urged the provisions of Sub. 4 of Art. 3995, R.C.S. of 1925, usually called the statute of fraud, as a bar to the enforcement of the asserted agreements pleaded by plaintiff. Appellees further pleaded a deed and release executed by plaintiff to deceased dated January 19, 1939, which they allege were in full and complete settlement of all claims theretofore asserted by plaintiff against the estate of deceased. To this, plaintiff alleged that at the time of the alleged settlement he knew nothing of the existence of the agreement between deceased and plaintiff's mother; that a fiduciary relationship then existed between plaintiff and deceased, and it was the latter's duty to inform plaintiff of such agreement theretofore had between his mother and deceased, which the latter failed to do, and by reason of such fraud perpetrated upon him at the time, the asserted release was not binding upon plaintiff so as to include such rights as he would be entitled to under the agreement of deceased and Mrs. Mattie Humphreys. The pleadings of litigants are extremely lengthy, but it is thought that the foregoing is sufficient for an understanding of the issues raised and of the matters to be discussed.

Special issues Nos. 1 to 3, inclusive, inquired of the jury if deceased had testamentary capacity on the respective dates of the wills mentioned in the first paragraph of this opinion. Issues Nos. 4 and 5 made the same inquiry in regard to January 21, 1939, and March 6, 1939, the respective dates of two other wills executed by deceased. Issues Nos. 6 and 7 inquired if the execution of the will of deceased dated April 5, 1939, had been procured by undue influence on the part of appellees. Issue No. 8 reads: "Do you find, from a preponderance of the evidence, that on or about June 1, 1931, J. C. Humphreys and his first wife, Mrs. Mattie Humphreys, entered into an agreement regarding the disposition of their respective property in the event of their deaths? Answer `yes' or `no.'" Issue No. 22 reads: "Do you find, from a preponderance of the evidence, that M. D. McWhorter intended by the deed dated the 19th day of January 1939, to release the said J. C. Humphreys from any and all claims that he, the said M. D. McWhorter, might have upon the estate of J. C. Humphreys? Answer `yes' or `no.'" To each of the foregoing issues the jury made answer favorable to appellees. Issue No. 21 is immaterial to any issue presented on appeal. Issues Nos. 23 and 24 and findings thereon are evidentiary. Upon above findings the court admitted to probate the will of April 5, 1939. Any relief prayed for by appellant or theretofore sought by the Shavers was denied. McWhorter appeals.

It is without controversy that deceased upon his application caused the will of Mrs. Mattie Humphreys to be probated and that he thereby acquired under its terms at least one-half of both the community and the separate estate of his wife, which interest he continuously controlled, used and appropriated to his own use. It is without controversy that deceased executed the 1935 will in which he bequeathed his entire estate to appellant. If the execution of the will by Mrs. Mattie Humphreys and the execution of the 1935 will by deceased were made pursuant to a mutual agreement theretofore entered into as alleged by appellant, and deceased took under the will of his first wife as above detailed, then deceased would be estopped and precluded from making testamentary disposition of the property...