Nimitz v. Holland

• Decision Date: 12 November 1919
• Docket Number: (No. 6069.)
• Citation: 217 S.W. 244
• Parties: NIMITZ et al. v. HOLLAND.
• Court: Texas Court of Appeals

217 S.W. 244

NIMITZ et al. v. HOLLAND.

(No. 6069.)

Court of Civil Appeals of Texas. Austin.

November 12, 1919.

Rehearing Denied December 24, 1919.

Appeal from District Court, Tom Green County; James Cornell, Judge.

Contest suit by Mary E. Nimitz and others against Robert S. Holland. Judgment admitting will to probate, motion for new trial overruled, and contestants appeal. Reversed and remanded.

Wright & Harris, of San Angelo, for appellants.

J. T. Thomson and Blanks, Collins & Jackson, all of San Angelo, and Critz & Woodward, of Coleman, for appellee.

BRADY, J.

On July 10, 1914, Mrs. Susan E. Holland made her will, bequeathing to her son, Robt. S. Holland, appellee on this appeal, all of her property, and appointing him executor. On November 20, 1914, Mrs. Holland died, and the will was offered for probate by appellee in the county court of Tom Green county. Appellants, the daughters of Mrs. Holland, who, together with Robt. S. Holland, being the sole heirs at law of Mrs. Holland, joined by their husbands, contested the application to probate the will upon the grounds of undue influence by Robt. S. Holland and mental incapacity of the testatrix. The trial in the county court was pro forma, no evidence being introduced by contestants, and from a judgment probating the will an appeal was prosecuted to the district court. The trial upon appeal was had upon amended pleadings before a jury, and verdict was rendered by the jury upon special issues. The jury, in effect, answered that Mrs. Holland, at the time of the execution of the will, had sufficient mental capacity, and that appellee, Robt. S. Holland, did not exercise undue influence over her in the procurement of the will. The verdict has support in the evidence. Upon this verdict the court entered judgment, admitting the will to probate, and overruled the motion for new trial, from which action this appeal has resulted.

Opinion.

Appellants' first five assignments relate to the alleged error of the trial court in refusing to permit Mrs. Nimitz and other appellants to testify that, in their opinion, Mrs. Holland was insane at the time she executed the will in question. This testimony was excluded upon objection of appellee, who invoked the provisions of article 3690, Revised Statutes of 1911. This statute reads as follows:

"In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent."

The first question we will consider is the point, made in the brief and argument for appellants, that the statute does not apply to this case; for the support of which proposition, appellants cited Simon v. Middleton, 51 Tex. Civ. App. 543, 112 S. W. 441, and Grelle v. Grelle, 206 S. W. 114. The question is set at rest, and discussion by us rendered unnecessary, by the recent decision of the Supreme Court in Leahy v. Timon, decided October 29, 1919, 215 S. W. 951, but not yet officially reported. The Supreme Court in that case expressly overruled the two decisions by the Courts of Civil Appeals, above referred to, upon this point, and held that this is an action by the heirs of the decedent arising out of a transaction with the decedent, and that the statute applies to such a suit.

We next come to the principal questions raised by appellants, arising out of the ruling of the trial court, refusing to permit Mrs. Nimitz and other appellants to give in testimony their opinion of the mental incapacity of Mrs. Holland at the time she executed the will in question.

It appears that Mrs. Nimitz was permitted to testify, without objection, that she was the daughter of Mrs. Holland, and had known and been with her a great part of her life; that she was with her during her last illness, and saw her on or about the date the will was made; that there was a great degree of affection between her mother and her four daughters, especially between her and her daughter Bessie Crawford, with whom she had lived a long time; that Mrs. Holland came to San Angelo from Houston to the home of her son, appellee, in May, 1914, in a serious physical condition; that they had to lift her mother off the train; and that she was in constant attendance upon her mother for three weeks, night and day, after her arrival in San Angelo. She was permitted to describe in detail her mother's condition during that time, and up to September, 1914, especially her physical sufferings and nervous condition, including the giving to witness by appellee of certain medicine for use by Mrs. Holland, which was termed by appellee "Jimmy" medicine. This testimony included details tending to show serious nervous trouble and excitement by Mrs. Holland during her last illness, with frequent unconscious spells. She was then asked the question whether or not, in her opinion, at and about the time her mother, Susan E. Holland, executed the alleged will, she was sane or insane. Objection was made to this question, upon the ground that to admit the opinion would in effect be permitting the witness to testify to conversations had and statements made by her mother. These objections were sustained, to which ruling appellants excepted. The witness was then asked the question whether, independently of any statements made by her mother, but merely from her observations of her, she (Mrs. Holland) was insane about the time of the making of the will. The objections were renewed, and the court again sustained them, stating in his ruling that "witness could not form an opinion independent of statements made or conversations had with her mother."

The qualification to this bill of exception shows that during the trial the court had, upon objection, excluded the testimony of this witness as to the statements made by the testatrix to her, and as to all transactions had between the testatrix and the witness. It also shows that the court held, and had held, that any opinion of the witness as to the mental condition of the testatrix would necessarily be based, in part at least, upon statements made by the testatrix, or upon transactions between her and the witness.

Before proceeding to the discussion of this difficult and perplexing question, we think it is important to advert to the rule of construction which the Supreme Court has held is applicable to this statute. Under the common-law rule, no interested witness was competent to testify in a case, and in 1871 (Laws 1870-71, p. 108) the Legislature of this state changed the rule of the common law by the enactment of this statute, in substantially its present form, as to the question before us. It was originally section 2 of the act approved May 18, 1871, and was, in effect, a proviso to the preceding section, which removed the bar of the common law as to witnesses on account of interest. In Leahy v. Timon, supra, the Supreme Court, with apparent approval, cited the cases of Roberts v. Yarboro, 41 Tex. 451, and Markham v. Carothers, 47 Tex. 25, holding that section 2, being a proviso to section 1, should be strictly construed.

We think this rule of construction important in determining the scope of the statute, and the extent to which we are authorized to go in enforcing the supposed policy embodied in this legislation. It restrains us from importing into the statute anything which its language does not clearly comprehend. The words must be taken in their ordinary meaning, and according to their usual signification, and the intent of the Legislature, when so ascertained, must be enforced.

The question, in the form in which it is presented, seems to be a novel one in this state. We have been cited to no Texas case, and we are aware of none, which involves precisely the question of the exclusion of the opinion of a witness, within the purview of the statute, as to mental incapacity, or the converse. The case has been ably briefed by counsel for both sides. Appellants rely chiefly upon Lanham v. Lanham, 62 Tex. Civ. App. 431, 146 S. W. 637; Smith v. Guerre, 159 S. W. 417; In Re Will of Brown, 38 Minn. 112, 35 N. W. 726; Schultze v. Culbertson, 125 Wis. 169, 103 N. W. 234; Estate of Goldthorp, 94 Iowa, 336, 62 N. W. 845, 58 Am. St. Rep. 400. To these may be added Martin v. McAdams, 87 Tex. 225, 27 S. W. 255, which we will have occasion to briefly discuss later.

The Texas cases mainly relied upon by appellee's counsel are Brown v. Mitchell, 75 Tex. 9, 12 S. W. 606; Clark v. Briley, 193 S. W. 419; Leahy v. Timon, 204 S. W. 1029; and they also cite the following cases from other states, which tend to support their position that the testimony was inadmissible, namely: Trowbridge v. Stone's Adm'r, 42 W. Va. 454, 26 S. E. 365; Eysaman's Will, 113 N. Y. 62, 20 N. E. 617, 3 L. R. A. 599; Davis v. Tarver, 65 Ala. 98; Brace v. Black, 125 Ill. 33, 17 N. E. 67.

A consideration of these authorities, while increasing the perplexities, has led us to the conclusion that appellants' propositions under the fifth assignment of error must at least in part be sustained. We are of the opinion that an interested witness, in such a suit, may testify that, independently of any statements made by the testatrix, or transactions with her, but merely from observation of the decedent's acts, conduct, and physical and mental condition, the witness is of the opinion that the testatrix was sane or insane at the time of the execution of the will; and we will as briefly as may be give the reasons for our holding. In the discussion it will be pretermitted that a nonexpert witness will not be allowed to testify as to the sanity or insanity of a person without detailing the facts...