Mitchell v. Deane
Decision Date | 14 April 1927 |
Docket Number | (No. 2025.) |
Citation | 294 S.W. 347 |
Parties | MITCHELL v. DEANE et al. |
Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Royall R. Watkins, Judge.
Application by Rena Mitchell to set aside a judgment probating a will of Dr. J. H. Mitchell, deceased, and to probate a later will, opposed by Emma G. Deane and others. From a judgment probating the earlier will, applicant appeals. Affirmed.
J. D. Kugle, R. T. Meador, and Wm. M. Cramer, all of Dallas, for appellant.
John Davis, Cockrell, McBride, O'Donnell & Hamilton, and Davis, Johnson & Handley, all of Dallas, for appellees.
By will dated July 1, 1919, Dr. J. H. Mitchell devised and bequeathed to his six children his estate, share and share alike, naming his son J. B. Mitchell executor. Dr. Mitchell died. J. B. Mitchell filed application to probate the will, and the same was admitted to probate.
Thereafter the appellant, Rena Mitchell, a daughter of the deceased, filed an application to set aside the judgment probating said will, and offered for probate a will of Dr. Mitchell dated August 25, 1923, and set up that the interested parties under the will previously admitted to probate were Emma G. Deane, née Mitchell, and husband, G. M. Deane, J. B. Mitchell, L. B. Mitchell, J. E. Mitchell, Albertina Mitchell, a minor, sole heir of M. V. Mitchell, deceased, of whom L. B. Mitchell is guardian, and herself.
Appellant was the beneficiary of the last will except for $1 given to each of the other children.
Upon hearing in the county court the judgment probating the will of July 1, 1919, was set aside, and the will dated August 25, 1923, admitted to probate as the last will of Dr. Mitchell. Upon appeal to the district court the case was tried before a jury, and upon the findings made the will of July 1, 1919, was probated as the last will of the deceased.
Upon the trial Pauline Mitchell, wife of one of the sons of the deceased, was permitted to testify as to the mental capacity of the testator over objection that her testimony was inadmissible, under article 3716, R. S.
It is unnecessary to review the numerous decisions bearing upon the question of her competency as a witness. She was not a party to the suit and could not properly have been so joined. She was not an heir at law of Dr. Mitchell, nor a legal representative of his estate. She had no property interest in the estate. The interest which her husband had was his separate estate. This being her status, she was not an incompetent witness under article 3716, R. S. Gamble v. Butchee, 87 Tex. 643, 30 S. W. 861.
G. M. Deane also testified. He was an incompetent witness because he was a necessary party to the proceeding, being the husband of Emma G. Deane, Dr. Mitchell's daughter, who was one of his heirs at law and a beneficiary under the first will. Leahy v. Timon, 110 Tex. 73, 215 S. W. 951. His testimony was admitted without objection and this was a waiver of his incompetency to testify. Walker v. Fields (Tex. Com. App.) 247 S. W. 272.
However, appellant later moved to withdraw his testimony and asked that the jury be instructed not to consider same for any purpose. Error is assigned to the overruling of this motion. No reason is given for failing to object to the evidence when offered. In such case the action of the court upon the motion rested in its discretion, and no abuse thereof is apparent. Mo. Pac. Ry. v. Lamothe, 76 Tex. 219, 13 S. W. 194; Montgomery v. Gallas (Tex. Civ. App.) 225 S. W. 557; Fort Worth & R. G. Ry. v. Andrews (Tex. Civ. App.) 29 S. W. 920; Hatzfeld v. Walsh, 55 Tex. Civ. App. 573, 120 S. W. 526; Postal Tel. Co. v. Harriss, 56 Tex. Civ. App. 105, 121 S. W. 359, 122 S. W. 891; Knights of Maccabees v. Johnson (Tex. Civ. App.) 143 S. W. 718; Sockwell v. Sockwell (Tex. Civ. App.) 166 S. W. 1188.
Affirmed.
On Motion for Rehearing and to Certify.
The only error assigned in the motion for rehearing is the ruling that Pauline E. Mitchell, wife of one of the sons of the deceased, was a competent witness in this proceeding. It is asserted she was incompetent to testify, under article 3716, R. S., because she was an interested witness. Appellant moves to certify the question at issue to the Supreme Court because of conflict with cases herein mentioned. There is no doubt that Article 3716, R. S., applied to this proceeding. Gamble v. Butchee, 87 Tex. 643, 30 S. W. 861; Leahy v. Timon, 110 Tex. 73, 215 S. W. 951.
In Gamble v. Butchee, one of the questions presented was whether the wife of a legatee was competent as a subscribing witness to testify to the execution of the will in a proceeding to probate such will. After holding the statute applied to the proceeding, Justice Brown said:
...
To continue reading
Request your trial-
Federal Crude Oil Co. v. Yountlee Oil Co.
...withdrawn on appellant's motion to strike. Halsey v. Humble Oil & Refining Co. (Tex. Civ. App.) 66 S.W.(2d) 1082, 1091; Mitchell v. Deane (Tex. Civ. App.) 294 S. W. 347; Missouri Pac. Railway Co. v. Lamothe, 76 Tex. 219, 13 S. W. 194; Postal Telegraph Cable Co. v. Harriss, 56 Tex. Civ. App.......
-
Collins v. Smith
...and has probative force. Cox v. McClave, Tex.Civ.App., 22 S.W.2d 961; Parker v. Allison, Tex.Civ. App., 22 S.W.2d 338; Mitchell v. Deane, Tex.Civ.App., 294 S.W. 347; Hein v. De Busk, Tex.Com.App., 277 S.W. 1053; Besteiro v. Besteiro, Tex.Com.App., 65 S. W.2d 759; McCormick & Ray, Texas Law ......
-
Carstens v. Landrum
...to instruct the jury not to consider the testimony of Landrum that he could not read or write thus presents no error. Mitchell v. Deane (Tex. Civ. App.) 294 S. W. 347, and cases The objection urged under the fifth assignment to issues 2 and 2½ was not made in the court below, and cannot be ......
-
City of Corpus Christi v. McMurrey, 1509.
...There is no duty imposed upon this court to certify such question when our decision follows that of the Supreme Court. Mitchell v. Deane (Tex.Civ.App.) 294 S.W. 347; Stark v. J. M. Guffey Pet. Co. (Tex.Civ. App.) 80 S.W. For the reasons assigned, the appellant's motion to certify is overrul......