Olds v. Traylor

• Decision Date: 27 April 1944
• Docket Number: No. 2597.,2597.
• Citation: 180 S.W.2d 511
• Parties: OLDS et al. v. TRAYLOR.
• Court: Texas Court of Appeals

180 S.W.2d 511

OLDS et al. v.TRAYLOR.

No. 2597.

Court of Civil Appeals of Texas. Waco.

April 27, 1944.

Rehearing Denied June 1, 1944.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Montgomery County; E. T. Murphy, Judge.

Proceeding in the matter of the probate of the will of W. H. Traylor, deceased, wherein Mrs. Nanna Sayers Olds and another filed a contest to the application of Fannie Hale Traylor for probate.From an adverse judgment, the contestants appeal.

Affirmed.

McComb & Davis, of Conroe, for appellants.

Blades, Chiles, Moore, Kennerly & Knight and W. J. Kronzer, Jr., all of Houston, for appellants on appeal only.

George B. Darden and T. F. Green, Jr., both of Conroe, for appellee.

RICE, Chief Justice.

This is a will contest.From an adverse judgment entered on the jury's verdict in the district court on appeal, contestants have appealed.

On March 29, 1940, W. H. Traylor, in the presence of attesting witnesses, executed his last will and testament, and died on the following 4th day of April.By the terms of his will he left to his two daughters (he had no other children) thirty acres in a square block out of his farm in Fort Bend County, Texas; the remainder of his estate he bequeathed to his wife, Fannie Hale Traylor.It appears that testator was divorced from his first wife, the mother of his two daughters, and that the beneficiary named in the will was his second wife, to whom he was married in 1930 and by whom he had no children.The estate of testator consisted of the 150-acre farm referred to in his will, which was his separate property.

The will was propounded for probate by the surviving wife of testator, and a contest thereto was filed by his two daughters.The pleaded grounds of contest were: (1) Lack of mental capacity; and (2) undue influence practiced on testator by his wife and others.

The jury found that testator possessed mental capacity to execute the will in question.Contestants seasonably requested the court to submit to the jury their pleaded issue of undue influence, and tendered such an issue to the court, inquiring of the jury whether the will was procured by undue influence of testator's wife and Marshall Traylor, or either of them.The court refused to submit the issue and contestants excepted and here assign the refusal of the trial court to submit such requested issue as reversible error.

As stated above, contestants pleaded that the will was void because the product of undue influence practiced on testator by his wife and others.Therefore, if there is in the record any admissible evidence of probative force raising the pleaded issue of undue influence, it was the duty of the trial court to submit to the jury the issue so raised by the pleading and the evidence.Rule 279, Vernon's Texas Rules of Civil Procedure.The failure of the trial court to submit such controlling issue, if raised by the evidence, would be reversible error.This would be true, even though the evidence raising the issue would be insufficient to support a jury's finding that the will was the product of undue influence.

The Supreme Court of this state, in a well-considered opinion rendered in Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, announced certain rules of law as governing in will cases involving the question of undue influence.In so doing the court warned that it was impossible to lay down any hard and fast rule, or rules, which would accurately govern the question as to whether any given record does or does not contain affirmative probative evidence of undue influence.The court further said that while each case must stand on its own bottom as to the legal sufficiency of the facts proved, there are certain well-known rules of law that govern in cases involving undue influence.The court then proceeded to hold that the influence is not undue unless the free agency of the testator has been destroyed and a will produced that the testator did not desire to make; that in will cases, after mental capacity has been shown, the burden of proving undue influence is on the contestant; that because undue influence is a subtle thing, and usually involves an extended course of dealings and circumstances, it is rarely possible to establish it by direct evidence; and therefore it is the rule that undue influence can be established by circumstantial as well as direct evidence; that while undue influence and mental incapacity are two distinct grounds for avoiding a will, weakness of mind and body may be considered as a material circumstance in determining whether a person was in condition to be susceptible to undue influence; that the fact that a testator has left a will unnatural in its terms may be considered as a circumstance along with other circumstances in determining whether or not a will was the product of undue influence.The foregoing rules laid down in Long v. Long, supra, are supported by the following decisions: Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138;Besteiro v. Besteiro, Tex.Com.App., 65 S.W.2d 759;Craycroft v. Crawford, Tex.Com.App., 285 S.W. 275.

Bearing in mind the foregoing rules, it is our duty to determine whether there is in this record any admissible evidence of probative force, direct or circumstantial, raising the pleaded controlling issue that the will in question was the product of undue influence.

Where the facts are controverted, or are such that different inferences may be reasonably drawn therefrom, an issue of fact is raised; it is only where the evidence is harmonious and consistent, and the circumstances permit of but one conclusion, that the question becomes one of law for the determination of the court.An issue of fact is raised "if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff."Wininger v. Ft. Worth & D. C. R. Co., 105 Tex. 56, 143 S.W. 1150;T. & P. R. Co. v. Cox, 145 U.S. 593, 12 S.Ct. 905, 36 L.Ed. 829;Brown v. Griffin, 71 Tex. 654, 9 S.W. 546;Texas & P. R. Co. v. Ball, 96 Tex. 622, 75 S.W. 4.

Applying the foregoing rules, and rejecting all evidence save that favorable to contestants, we find in this record the following testimony: At the time of his death, testator was seventy years of age; a doctor who had treated testator for approximately a year before his death testified that he had Bright's disease; that such disease not only affects the mind but the heart also; that toxic poisoning from Bright's disease flows all through a man's body.This witness' certificate as to the cause of testator's death showed uremia and congestive heart trouble.He testified that while Bright's disease will cause congestive heart failure, you can have congestive heart failure as a primary condition and uremia as a secondary cause; that if deceased, the day before the will was made, was talking at random and was repeating over and over again the same thing, he would not say he was normal; that he saw deceased on Sunday, March 31, 1940, at his home; that deceased had more or less difficulty in breathing and was weak; that deceased was rational and recognized him; that the principal cause of testator's death was congestive heart failure, complicated by kidney involvement.

M. J. Olds testified that on March 28, 1940, the day before the will was executed, he accompanied his wife, a daughter of testator, on a visit to her father; that they did not know he was sick until they saw him; that he was a very sick man, was gasping for breath, and was unable to raise up in bed; he was talking at random, like some person out of his head.There was evidence that a kidney medicine, a heart stimulant and a rest medicine were given testator during his last illness.

An attorney of Conroe testified that about two weeks or ten days before testator's death, two men (who were shown by the evidence to be related to Mrs. Traylor by marriage) came to his office and said that testator wanted to make a will and requested him to go and he did go, as requested, to testator's home and found the old gentleman to be in rather bad health; that testator told him he had two daughters by a prior marriage, that they were both married, and he could not recall their names; that he was undecided how to leave his property; that testator said he knew the thing to do was to leave the property to these two daughters inasmuch as his second wife had a place; that he would ascertain the married name of his daughters and advise the attorney, and he could prepare the will; that he was never advised and did not prepare the will.

Mrs. Traylor testified that her husband was fond of his daughters, and seemed to "make right smart over" his granddaughter.

The testimony of a brother of deceased given in the County Court was introduced in evidence as follows:

"Q.Youheard Mrs. Traylor say in the presence of your brother that she had written a week before, had written to Hallie and Nana to come that their father was seriously ill and asked them to come?They wrote to Hallie to come.I do not know whether they wrote to Nana or not.

"Q.That was before the making of this will?A.Yes, sir.

"Q.Your brother resented the fact they did not come to see him?A.I do not know.

"Q.When something was said about writing again, he told them not to do it?A.Yes, sir."

Marshall Traylor, a nephew of deceased, testified he wrote testator's will at the latter's request; that his uncle, on that occasion, stated to him that he wanted to leave fifteen acres of land to each of his daughters, and said that he would feel like a dirty dog if he did not leave them something; this witness further testified that on this occasion testator stated the reason he was leaving his girls so little was because they would not come to see him.

Mr. L. P. Moore, a witness for proponent, testified that he was a...