Mills v. Kellahin, 3348.

Decision Date27 February 1936
Docket NumberNo. 3348.,3348.
Citation91 S.W.2d 1097
PartiesMILLS et al. v. KELLAHIN et al.
CourtTexas Court of Appeals

Appeal from District Court, Uvalde County; Lee Wallace, Judge.

Application by O. A. Mills, executor, to probate the will of Jason W. James, deceased, contested by Lily James Kellahin and others. From a judgment for the contestants, the executor and others appeal.

Affirmed.

G. B. Fenley, of Uvalde, B. W. Teagarden, of San Antonio, and Ditzler H. Jones, of Uvalde, for appellants.

Hervey, Dow, Hill & Hinkle, of Roswell, N. M., Morriss & Morriss, of San Antonio, and K. K. Woodley, of Sabinal, for appellees.

HIGGINS, Justice.

On July 11, 1933, Capt. Jason W. James executed his will by which he gave his estate, share and share alike, to a niece, Jennie James McClenny, and Fina Bell Bender, the daughter of a first cousin. He appointed O. A. Mills independent executor without bond. On the following 14th of September, Capt. James died at the age of 90. The application of the executor to probate the will was contested by the heirs at law of the testator consisting of the said Jennie James McClenny, Lily James Kellahin, nieces of the testator, and their husbands, and a nephew, Jason Gilmore Urton, a minor. In the county court the will was admitted to probate. The contestants appealed to the district court, where the case was submitted to a jury upon the issues raised by the pleadings, namely, testamentary capacity and undue influence exercised by Mrs. Bender. The issue of testamentary capacity was submitted in the first issue. The issue of undue influence was submitted conditional upon a finding that testator had testamentary capacity at the time he executed the will. In connection with the issue of testamentary capacity the court charged: "That for a person to have `testamentary capacity' as that term is used in said issue, such person at the time of execution of the will must have had sufficient mental ability to understand the business in which he was engaged, the effect of his act in making the will, and the nature and extent of his property; he must be able, also, to know his next of kin and the natural objects of his bounty and their claims upon him; he must have memory sufficient to collect in his mind the elements of the business to be transacted and to hold them long enough to perceive at least their obvious relation to each other, and be able to form a reasonable judgment as to them." (Italics ours.)

Upon the issue of testamentary capacity it was found testator did not have such capacity and the issue as to undue influence was not answered. Judgment followed conforming to the findings from which Mrs. Bender and husband, and Mills appeal.

Opinion.

The points presented by appellants may be briefly summarized as follows:

1. The finding that the testator lacked testamentary capacity at the time he executed the will is contrary to the undisputed evidence; or in any event is so contrary to the great weight and preponderance of the evidence it should be set aside.

2. The conditional submission of the issue of undue influence operated to inform the jury of the effect of their answer to the issue of testamentary capacity.

3. The italicized portion of the instruction above quoted was unnecessary, improper, and erroneous in view of the preceding portion of such instruction.

4. Error in the admission of testimony of certain nonexpert witnesses as to the mental condition of the testator.

These contentions present no novel question of law or fact. They call for no extended discussion.

Capt. James was a very aged man at the time he executed his will and for a long time previous thereto had been in feeble health, ravaged by disease. Dr. Pruitt, medical consultant at the Scott-White Clinic, Temple, Tex., where Capt. James was taken August 8, 1933, testified: "A diagnosis was made. Chronic nephritis, myocarditis, chronic arteriosclerosis, general; dermatitis, lower extremities, senile type; bilateral cataract, epithelioma lower left eyelid. Chronic nephritis is a chronic or long standing degenerative kidney condition. Due to the fact that toxic materials normally eliminated by the kidneys are retained within the body, it leads to the collection of fluid in the tissues and different organs of the body together with a retention of waste products throughout the body. Chronic nephritis is the disease that is referred to commonly as `Bright's disease.' Yes, this disease has effect on all the organs of the body. Chronic nephritis in an elderly person is always...

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7 cases
  • Breeding v. Naler, 1950.
    • United States
    • Texas Court of Appeals
    • March 24, 1938
    ...The court, in connection with the issues submitted in this case, gave a correct definition of testamentary capacity. Mills v. Kellahin, Tex.Civ.App., 91 S.W.2d 1097, 1099, par. 3. One element of such definition was that the testator must not only be able to know his next of kin and the natu......
  • Cheesborough v. Corbett
    • United States
    • Texas Court of Appeals
    • October 30, 1941
    ...279 S.W. 806; Reinhardt v. Nehring, Tex. Com.App., 291 S.W. 873; Campbell v. Campbell, Tex.Civ.App., 215 S.W. 134; Mills v. Kellahin, Tex.Civ.App., 91 S.W.2d 1097; Degenhardt v. Joplin, Tex.Civ.App., 239 S.W. 692; Henson v. Adkins, Tex.Civ. App., 290 S.W. 231; Warren v. Ellis, Tex. Civ.App.......
  • Grieger v. Vega
    • United States
    • Texas Supreme Court
    • July 14, 1954
    ...Tex. 250, 133 S.W.2d 759; Lloyds Casualty Company of New York v. Grilliett, Tex.Civ.App., 64 S.W.2d 1005, error refused; Mills v. Kellahin, Tex.Civ.App., 91 S.W.2d 1097, writ dismissed; Burrow v. Davis, Tex.Civ.App., 226 S.W.2d 199, ref. n. r. e.; Dallas Railway & Terminal Co. v. Baughman, ......
  • King v. King
    • United States
    • Texas Court of Appeals
    • June 11, 1951
    ...Tex.Civ.App., 20 S.W.2d 396, 398. The record abundantly reveals that the physicians were likewise qualified to testify. Mills v. Kellahin, Tex.Civ.App., 91 S.W.2d 1097, The appellant insists the court erred in refusing his requested instructions 3, 4 and 6. Omitting the formal parts these r......
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