Oechsner v. Ameritrust Texas, N.A.

• Decision Date: 14 October 1992
• Docket Number: No. 08-92-00032-CV,08-92-00032-CV
• Citation: 840 S.W.2d 131
• Parties: John G. OECHSNER, Jr., Appellant, v. AMERITRUST TEXAS, N.A., Independent Executor of the Estate of John G. Oechsner, Sr., Deceased, Scottish Rite Hospital for Crippled Children and Elvira Lopez, Appellees.
• Court: Texas Court of Appeals

Page 131

840 S.W.2d 131

John G. OECHSNER, Jr., Appellant, v. AMERITRUST TEXAS, N.A., Independent Executor of the Estate

of John G. Oechsner, Sr., Deceased, Scottish Rite

Hospital for Crippled Children and

Elvira Lopez, Appellees.

No. 08-92-00032-CV.

Court of Appeals of Texas,

El Paso.

Oct. 14, 1992.

Rehearing Overruled Nov. 12, 1992.

Ted Hollen, James M. Speer, Jr., El Paso, for appellant.

William T. Kirk, Mounce & Galatzan, Richard Yetter, E. Link Beck, Beck & James, El Paso, for appellees.

Before OSBORN, C.J., and KOEHLER and BARAJAS, JJ.

OPINION

BARAJAS, Justice.

This is an appeal from a will contest. Appellant John G. Oechsner Jr. and his sister, Kathleen Gilliland, contested the Application for Probate of the Last Will and Testament and Codicil thereto of their father, John G. Oechsner Sr. The jury rendered a verdict in favor of Appellees, Scottish Rite Hospital and Elvira Lopez, beneficiaries under the will and codicil. In four points of error, Appellant challenges the judgment of the trial court. We affirm.

I. SUMMARY OF THE EVIDENCE

John G. Oechsner Sr. and his wife, Maren Oechsner, executed largely identical wills leaving their respective properties in trust to each other, upon the death of either of them, then to their children, John Oechsner Jr. (hereinafter Oechsner Jr.) and Kathleen Gilliland, upon the death of the surviving spouse. Maren Oechsner subsequently changed her will on January 29, 1980, without her husband's knowledge and completely disinherited him. John G. Oechsner Sr. was predeceased by his wife, who died on January 1, 1985. On January 3, 1985, two days after his wife's funeral, Oechsner Sr. was advised of the existence of the provision in his late wife's will regarding his disinheritance, and as a result, became upset about the disposition of the properties and the fact that he had not previously been told of the change. Moreover, Oechsner Sr. became upset by his children's attempt to inventory household items shortly after his wife's death. Thereafter, disagreement and conflict arose between Oechsner Sr. and his children concerning the inventorying and disbursement of the assets of Mrs. Oechsner's estate.

On January 29, 1985, less than a month after his wife's death, Oechsner Sr. executed his Last Will and Testament devising his entire estate to the Texas Scottish Rite Hospital For Crippled Children. No provision was made for his son or daughter.

Efforts to settle his late wife's estate continued until October 1985 at which time they were concluded.

On October 24, 1985, Oechsner Sr. executed a codicil to his will which left his home to his housekeeper, Elvira Lopez. At the time of the execution of both the will and codicil, Oechsner Sr. was ninety-three years old.

John Oechsner Sr. died on October 31, 1988. Appellant, John Oechsner Jr. and his sister, Kathleen Gilliland, instituted this action on November 11, 1988, contesting both the will and codicil of their father. As contestants, they alleged John Oechsner Sr. lacked testamentary capacity when he executed both the will and codicil because he was suffering under some form of insane delusion and was subjected to undue influence by the Scottish Rite Hospital and Elvira Lopez.

II. DISCUSSION

In his first point of error, Appellant argues the trial court erred in overruling his objection to the definition of insane delusion, as requested by Appellees and included in the court's charge. In Point of Error No. Two, Appellant contends the trial court erred in failing to submit his requested definition of insane delusion.

We note at the outset that Appellant timely tendered his own instruction on insane delusion and objected to the instruction as submitted to the jury. Appellant, however, failed to have his proposed instruction noted as "refused" or "modified," nor was the proposed instruction signed by the trial court. Generally, to preserve review on appeal of a trial court's refusal or modification of a requested instruction, question, or definition, established rules of procedure require that the trial court endorse "refused" or "modified" on the same and sign it. ¹ Tex.R.Civ.P. 276. In spite of Rule 276, this Court has held that such error is properly preserved even when the proposed instruction does not contain the judge's signature if "the record clearly demonstrates that the instruction was 'timely presented, opposing counsel knew it was before the trial court and the trial court clearly refused to submit it.' " Chemical Express Carriers, Inc. v. Pina, 819 S.W.2d 585, 589 (Tex.App.--El Paso 1991, no writ) (quoting American Motorists Insurance Company v. Lynn, 762 S.W.2d 229 (Tex.App.--El Paso 1988, writ denied). The record in the instant case reveals that Appellant not only failed to get the trial court's signature on the requested instruction, but additionally failed to have the trial court endorse the instruction as "refused" or "modified". Nonetheless, Appellant timely and specifically objected to the trial court's proposed charge, opposing counsel was made fully aware of Appellant's objection, and the trial court clearly and unequivocally overruled Appellant's objection to the charge. Accordingly, we find that even though Rule 276 was not fully complied with, Appellant's asserted error is properly preserved. Chemical Express, 819 S.W.2d at 589.

The form of definitions and instructions submitted to a jury rests upon the sound discretion of the trial court. Nixon v. Sipes, 667 S.W.2d 223 (Tex.App.--Texarkana 1984, writ ref'd n.r.e.). In that regard, "[t]rial courts are allowed 'considerable discretion in deciding which instructions are necessary and proper.' " Texas Employers Insurance Association v. Duree, 798 S.W.2d 406, 412 (Tex.App.--Fort Worth 1990, writ denied) (quoting Johnson v. Whitehurst, 652 S.W.2d 441, 447 (Tex.App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.). A proper instruction is one that both assists the jury and is legally correct. Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 822 (Tex.App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.), cert. dism'd, 485 U.S. 994, 108 S.Ct. 1305, 99 L.Ed.2d 686 (1988). An instruction that either misstates the law or which tends to mislead the jury fails to meet the above criteria for legal correctness. Texaco, 729 S.W.2d at 768, 822.

A trial court's refusal to submit a requested instruction will not be overturned on appeal unless the court abused its discretion. Magro v. Ragsdale Brothers, Inc., 721 S.W.2d 832, 836 (Tex.1987); Mobile Chemical Company v. Bell, 517 S.W.2d 245, 256 (Tex.1974). On review to determine if there has been an abuse of discretion, the error must have caused or can be reasonably calculated to have caused the rendition of an improper verdict. Tex.R.App.P. 81(b)(1); Chemical Express, 819 S.W.2d at 585, 589.

The record reflects that the instructions submitted to the jury in the present case, which consisted of a definition of testamentary capacity together with that of insane delusion, provided as follows:

Testamentary capacity is composed of all four of these elements being present at the same time: (a) the ability of JOHN G. OECHSNER SR., to know and understand the business in which the [sic] he is engaged; (b) the ability of JOHN G. OECHSNER, SR., to know the effect of the act of making the will; (c) the capacity of JOHN G. OECHSNER, SR., to know the objects of his bounty and their claims upon him; and (d) the capacity of JOHN G. OECHSNER, SR., to know the general nature and extent of his property.

To make a valid will, the person making the will must have testamentary capacity, and must not, at the time of the execution of the will, be laboring under an insane delusion, which influenced the person executing such will to dispose of his property in a way which he would not have disposed of it but for the insane delusion.

You are further instructed that by 'insane delusion' is meant the belief of a state of supposed facts which no rational person would believe. ²

In addition to the submission of the above instruction, Appellant requested that the following language further defining "insane delusion" be given:

An insane delusion is a misconception of fact, or an abnormal mental attitude, due to some organic defect in the brain or some functional disorder of the mind. That it is so due may be inferred from its purport, if too fantastic to be the product of a normal mind; or from its fixed and persistent nature, if conceived without foundation in reason; or from its progressive immoderateness if originally induced by some rational cause; or from its origin in a previous state of irrationality.

Appellant contends that the trial court's failure to submit the above requested language constituted an abuse of discretion, and thus error. We disagree.

In Knight v. Edwards, 153 Tex. 170, 264 S.W.2d 692 (1954), the Supreme Court set up a two-pronged test defining insane delusion: (1) the belief of a state of supposed facts that do not exist; and (2) which no rational person would believe. This test, adopted in our jurisdiction as early as 1886 in Vance v. Upson, 66 Tex. 476, 1 S.W. 179 (1886), was followed in Lindley v. Lindley, 384 S.W.2d 676 (Tex.1964) and later in Bauer v. Estate of Bauer, 687 S.W.2d 410, 411 (Tex.App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.). Between 1886 and 1985, the courts of this state have had little, if any, occasion to enlarge upon the above definition or to prescribe a more detailed or precise test. We choose not to expand on that definition. See Knight, 264 S.W.2d at 695.

Given the above established definition of insane delusion, an instruction, identical to the instruction submitted in the instant case, was considered by the Texas Supreme Court in Lindley, 384 S.W.2d at 676. ³ The question presented in Lindley, was whether the trial court erred in refusing to instruct the jury as to the issue of insane delusion, once the issue was sufficiently raised by the evidence. The Supreme Court found error...