Naihaus v. Feigon

• Decision Date: 08 November 1951
• Docket Number: No. 12299,12299
• Citation: 244 S.W.2d 325
• Parties: NAIHAUS et al. v. FEIGON.
• Court: Texas Court of Appeals

Page 325

244 S.W.2d 325

NAIHAUS et al. v. FEIGON.

No. 12299.

Court of Civil Appeals of Texas, Galveston.

Nov. 8, 1951.

Rehearing Denied Dec. 6, 1951.

Cole, Patterson, Cole & McDaniel, Houston and Armstrong, Barker, Bedford & Lambdin, Galveston (Bennett B. Patterson, Richard R. Cole and Owen D. Barker, Galveston, of counsel), for appellants.

Markwell & Stubbs and Russel H. Markwell, all of Galveston (Harold M. Oster, of Dallas, and Ralph Crawford of Galveston, of counsel), for appellee.

CODY, Justice.

This is a contest of the will of Mrs. Annie Reiman, who died in Galveston on September 14, 1949, which originated in the County Court of Galveston County. The contestants are nieces, grand-nieces, nephews and grand-nephews and the proponent of the will, the contestee, is Louis Feigon, who is named as the principal beneficiary and is independent executor. He was not related to the testatrix. From the judgment of the County Court, ordering the will probated, contestants appealed to the District Court, where, at the conclusion of all of the evidence, the court directed the jury to return a verdict for the contestee and rendered judgment directing the will to be probated.

On this appeal the contestants have abandoned lack of testamentary capacity as a ground of an attack on the validity of the will and here confine the attack to two grounds, (1) undue influence and (2) that the testatrix did not have full knowledge of the contents of the will. Therefore, the burden was on the contestants to make out a case to go to the jury on these grounds. Since the court in effect sustained a demurrer to contestants' evidence, the evidence offered in support of said grounds must be taken as true and all inferences favorable to contestants which the evidence will reasonably bear must be indulged.

Before stating the evidence in conformity with the test just stated and in order to properly evaluate such evidence, we call attention to the case of Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, 1035, which announces certain general grounds which goven in undue influence cases. There it is stated that the influence is not undue '* * * unless the free agency of the testator has been destroyed, and a will produced that such testator did not desire to to make.' It is further there noted that undue influence must generally be established by circumstantial evidence and among the circumstances to be taken into consideration along with others which tend to show that the free agency of the testator has been destroyed is an unnatural disposition of property made by the will.

It is further to be borne in mind that it is only where undue influence has been independently proved that a testator's declarations, acts and course of dealing, expressive of a mental state produced by such influence (whether contemporaneous with the execution of the will or within a reasonable time before or after its execution) are admissible on the question of testator's free agency in executing the will. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138.

It may be further noted that it has been held that the following enumerated facts standing alone would be insufficient to raise an issue of undue influence though if such facts were shown in combination the issue would be raised: (1) testatory intention of deceased, (2) opportunity afforded to alleged wrongdoer to control the decedent's acts, (3) character and condition of the decedent, (4) activity on the part of the alleged wrongdoer in procuring the execution of the writing, and, (5) naturalness of the provisions of the instrument. Quoted from 44 Tex.Jur. 585, in motion for rehearing in Schelb v. Sparenberg, Tex.Civ.App., 111 S.W.2d 324.

A great volume of evidence, as is usual in undue influence cases, was introduced into the record. We think it would be helpful to arrange the evidence of circumstances in a chronological order.

In 1937 testatrix and her husband both made wills. At that time testatrix devised 75% of her property to her husband and 25% to Y. Reiman, whom she referred to as her son but who was the son of her husband by a prior marriage. Then on April 4, 1939, which was after her husband's death, she made a new will in which she left everything to her aforesaid step-son; then on March 21, 1940, she made a codicil to her 1939 will making certain gifts to Temple B'Nai Israel, of which she was a member, the congregation of which adhered to Reform Judaism.

Later in the same year (1940) testatrix made a new will in which she again made her step-son her principal beneficiary but in this will she left $2,000 to ten various nephews and nieces in Poland, and again left certain gifts to her synagogue. Thereafter, in 1943, and which was after the death of her aforesaid step-son and many of her nephews and nieces to whom the $2,000 bequest was left in the 1940 will, testatrix made a new will. In this 1943 will she left $500 to the Beth Jacob Synagogue of Galveston, which subscribes to Orthodox Judaism, and $500 to Temple B'Nai Israel. In this 1943 will she devised $300 to an institution for the blind and left her jewelry to three nieces who resided in New Orleans, being Annie Naihaus, Gertie Siver and Mollie Pianko. In this 1943 will she made her friend and attorney, Alfred Borofsky, who was not related to her, her residuary legatee. Mr. Borofsky died January 28 or 29, 1948.

Two days after the funeral of Mr. Borofsky testatrix went to the law office of Mr. Crawford in Galveston and told him that she would now have to write a new will and would come back later to give him directions. No one accompanied testatrix at that time. Mr. Crawford was the law partner of Mr. Borofsky at the time of Mr. Borofsky's death. Before they formed their partnership Mr. Crawford and been the County Attorney of Galveston County and Mr. Borofsky was an assistant County Attorney.

Then about February 22, 1948, testatrix came back to see Mr. Crawford at his office. Mr. Feigon had arrived at Mr. Crawford's office some five minutes before testatrix did and waited in the outer office until she arrived. At this point, we digress to say that Mr. Feigon, contestee, was the Rabbi of Beth Jacob Synagogue and had been such for more than twenty years. The evidence was to the effect that testatrix had telephoned Mr. Feigon to meet her at Mr. Crawford's law office without telling him for what purpose.

Upon the arrival of testatrix she and the contestee went into Mr. Crawford's office and there the testatrix, in the presence of contestee told Mr. Crawford she would have to make some changes in her will (the Borofsky will). Mr. Crawford then took that will and read each of its paragraphs to the testatrix, asking her with respect to each such paragraph how she wanted it changed. She raised the amount of the bequest to each of the synagogues from $500 to $1,000. When asked about what change she wanted in the residuary paragraph of the old will (Borofsky will), testatrix told Mr. Crawford she wanted to leave everything to Rabbi Feigon. We digress here to say that Mr. Crawford testified that Mr. Feigon appeared to be surprised. Mr. Feigon's testimony was that he had no foreknowledge of testatrix' intention to make him a legatee-returning to the narrative of the...