Milner v. Sims

• Decision Date: 03 December 1914
• Docket Number: (No. 1364.)
• Citation: 171 S.W. 784
• Parties: MILNER v. SIMS et al.
• Court: Texas Court of Appeals

171 S.W. 784

MILNER v. SIMS et al.

(No. 1364.)

Court of Civil Appeals of Texas. Texarkana.

December 3, 1914.

Appeal from District Court, Hopkins County; Wm. Preisor, Judge.

Suit by Ready Sims and others against M. F. Milner. From a judgment for plaintiffs, defendant appeals. Reversed.

J. H. Beavers and W. G. Russell, both of Winnsboro, for appellant. C. O. James and C. E. Sheppard, both of Sulphur Springs, and W. D. Suiter, of Winnsboro, for appellees.

HODGES, J.

This is a suit filed by the appellees to cancel a deed and a will in which certain property was conveyed to the appellant. The facts show that Mrs. M. A. Speer was the widow of J. M. Speer, who died in 1890. At the time of his death Speer and his wife owned a tract of land situated in Hopkins county, on which the widow continued to reside until October, 1912. Some time during that month she left her former home, and thereafter resided with her daughter Mrs. Milner, the appellant herein, who lived in Wood county. Mrs. Speer died some time during the month of May, 1913. About ten days or two weeks before her death she made a deed, in which she conveyed her interest in her real estate to her daughter Mrs. Milner. The consideration expressed in the deed was love and affection and care and attention for the grantor during the remainder of her life by Mrs. Milner. About the same time she made a will, in which all of her property was bequeathed to Mrs. Milner. This suit was instituted by Mrs. Meed (one of the surviving daughters of Mrs. Speer) and the children of a deceased daughter, and in it they seek to have both the deed and the will canceled, as clouds upon their title to the property they would otherwise acquire by inheritance from Mrs. Speer. It is alleged that at the time of the making of the deed and will Mrs. Speer was aged and infirm; that her mind had become impaired to such an extent that she was incapable of making either a valid deed or a valid will. It is further charged that undue influence was used by Mrs. Milner to induce her to execute both of these instruments. There being no evidence of any undue influence, that ground of complaint seems to have been abandoned, and that issue was not submitted to the jury. The court submitted the case upon special issues relating only to the mental capacity of Mrs. Speer to execute the deed and will. Upon answers finding that she was not mentally capable, a judgment was entered in favor of the appellees canceling both the deed and the will.

The first assignment which we shall notice complains of the admission of the following testimony from Dr. Attaway, a physician who had attended Mrs. Speer some months prior to her death:

"Mrs. Speer was not competent to execute a deed of conveyance or will disposing of her property and estate, and was not mentally capacitated to know the extent and result of the instruments."

The court appended an explanation to the bill of exceptions, in which it is stated that before the witness was permitted to give that testimony he testified that he was a practicing physician, had known Mrs. Speer for quite a number of years, had been her family physician, and was familiar with her condition; that she was at the time suffering from senile dementia, which he explained to be disintegration of the tissues, atrophy, or a drying up of the brain cells; that such condition was progressive, and would grow worse as she grew older The inadmissibility of this character of testimony is so well settled by the decisions of our Supreme Court that it is unnecessary to do more than to refer to a leading authority upon that question, Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64. Others equally as specific might be cited, but the very proposition here involved is there so fully discussed, and the ruling so clearly announced, that further citations are unnecessary. The fact that the witness may be an expert in diagnosing mental and physical diseases does not authorize him to determine questions of law. The appellees contend, however, that, conceding that this question was objectionable upon the issue of Mrs. Speer's capacity to execute a will, it was admissible upon the issue of her capacity to execute the deed. They insist that the courts make a distinction between controversies involving the validity of a will and those involving the validity of a deed. We are unable to appreciate the force of that suggestion. The principle upon which the testimony is rejected is applicable equally to both. If it is an invasion of the province of the jury in the one instance, it is none the less so in...