Pool v. Boyer

• Decision Date: 06 May 1954
• Docket Number: No. 3151,3151
• Parties: POOL et al. v. BOYER et al.
• Court: Texas Court of Appeals

Page 223

268 S.W.2d 223

POOL et al. v. BOYER et al.

No. 3151.

Court of Civil Appeals of Texas, Waco.

May 6, 1954.

Rehearing Denied May 27, 1954.

Abney, Hammett & Lynch, Lampasas, H. W. Allen, Hamilton, Truman E. Roberts, Hico, for appellants.

Bryan, Maxwell, Bryan & Wilson, Waco, L. Brann, Lubbock, P. M. Rice, Hamilton, for appellees.

TIRELY, Justice.

Appellants brought this action to set aside the last will and testament of Jasper Pool, their contest being grounded on undue influence practiced on the testator by appellees. The County Court of Hamilton County admitted the will to probate and contestants seasonably perfected their appeal to the District Court of that county. That court submitted one issue to the jury, namely: 'Do you find from a preponderance of the evidence in this case that at the time of the making of the will in question herein, on March 5, 1949, the said Jasper Pool was induced to make said will by the exercise of undue influence upon him by Mrs. Bertie Boyer and Mrs. Bessie Blake, or either of them?', to which the jury answered 'Yes.' The court overruled contestants' motion for judgment and granted appellees' motion for judgment non obstante veredicto and decreed that the will of Jasper Pool be admitted to probate and that contestants of said will take nothing. The contestants seasonably perfected their appeal to this court.

The judgment is assailed substantially on the ground that there is evidence in the record sufficient to sustain the finding of the jury to the effect that the will of Jasper Pool was the result of undue influence exerted upon him by appellees.

Appellees contend in effect (1) that there is no evidence of probative force to establish that the will of Jasper Pool resulted from undue influence exerted upon him by contestees; and (2) that if there is any evidence showing that such will was the result of undue influence, then in such event it was insufficient to sustain the verdict of the jury, and in either event the court should have granted motion for judgment non obstante veredicto.

We quote the second and third sections of the will, which are pertinent here:

'Second: It is my will and desire that my two daughters Bertie M. Boyer and Bessie Blake, each receive the sum of Two Thousand Dollars out of my estate before the division thereof. I make this decision after the most careful consideration, not as a matter of favoritism, but because I think that they deserve it. It is given with the provision that neither of them will claim any additional compensation for their services, to care for me.

'Third: I also direct that my son Ernest M. Pool shall receive the sum of $400.00 out of my estate before the division thereof.

'After payment of the three legacies above mentioned, then the remainder of my estate shall be equally divided among my four children, Bertie M. Boyer, Bessie Blake, Ernest Pool and W. R. Pool and no others.

'I do not leave anything to the four children of my son John C. Pool for the reason that he said John C. Pool having been unfortunate in some of his business transactions and having been unwell a considerable portion of his life I have paid out money to him and for him in excess of what his just share would be. In order there may be no question about my intentions in this matter I leave to his children J. C. Pool, Jr., Louise Pool, Billie Pool and Kenneth Pool the sum of One Dollar each.'

Much has been written by our Supreme Court and our Courts of Civil Appeals on the question of undue influence as it relates to wills, and perhaps those decisions most helpful and applicable here will be found in Long v. Long, 133 Tex. 96, 125 S.W.2d 1034; Besteiro v. Besteiro, Tex.Com.App., 65 S.W.2d 759; Bergstedt v. Bender, Tex.Com.App., 222 S.W. 547; Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138. See also Hart v. Hart, Tex.Civ.App., 110 S.W. 91, no writ history; Craycroft v. Crawford, Tex.Com.App., opinion adopted, 285 S.W. 275. See also Stewart v. Miller, Tex.Civ.App., 271 S.W. 311, opinion by Chief Justice Gallagher; Rankin v. Rankin, 105 Tex. 451, 151 S.W. 527; Olds v. Traylor, Tex.Civ.App., 180 S.W.2d 511, writ ref., opinion by Chief Justice Rice; Barksdale v. Dobbins, Tex.Civ.App., 141 S.W.2d 1035, writ ref.; Goodloe v. Goodloe, 47 Tex.Civ.App., 493, 105 S.W. 533, writ ref.; Venner v. Layton, Tex.Civ.App., 244 S.W.2d 852, n. r. e.; Curry v. Curry, Tex.Civ.App., 265 S.W.2d 899.

Since the trial court disregarded the verdict of the jury and entered judgment for the contestees, it is our duty here to consider whether this record is entirely bare of facts which would justify the rejection of this will as a product of undue influence exercised over the mind of the testator by the contestees. In so doing we must bear in mind that the jury has found such undue influence and we must therefore indulge the presumption that the jury believed and accepted all probative evidence tending to support its verdict. The foregoing is substantially the statement of the rule in Point 10 in Long v. Long, supra.

In considering the testimony adduced, it is our duty to bear in mind the following rule which is in accord and substantially to the same effect as the rule we have just quoted; 'Where the facts are controverted, or are such that a different inference 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. '' See Points 8 and 9, Olds v. Traylor, supra, and authorities there cited.

So we come now to a consideration of all of the facts and circumstances tendered by the evidence to determine whether or not the issue of undue influence was raised, and, if so, whether it is sufficient to sustain the jury's verdict.

Jasper Pool executed his last will and testament on the 5th of March, 1949, at which time he was 89 years, 11 months and four days old, and on the eighth day after the death of his son, John C. Pool. Jasper Pool died in August, 1952, at which time he was 93 years, four months and 28 days old. John was the father of the contestants. The testator was married one time only and he and his wife executed a will in which each willed to the other all property which the one predeceasing shall own. Testator's wife died in the Fall of 1929 and Jasper Pool took all of the title to the property and their children took nothing. John and his family moved into the Jasper Pool home after the death of his wife and they remained there until 1934. These contestants were all born while John and his wife were living in this immediate vicinity, some of them having been born in the home of the testator. In 1934 John and his family moved to Oklahoma and Mrs. Boyer, one of the appellees and a daughter of Jasper Pool, came to live with the testator and remained there until he died. Mrs. Blake, the other appellee, came to live with the testator and her sister in 1945 and lived there until testator's death. John C. Pool and his wife were divorced in 1947 in the State of Oklahoma and thereafter he came back to Hamilton County and lived with his father until his death.

The record is silent as to any differences between Jasper and his son John, and the record justifies the jury in believing that the testator had equal regard for all of his children until he came to make his will in March, 1949. The jury had the right to draw such inference because after the death of testator's wife in 1929, if the testator had died his property would have passed to his children and grandchildren under the laws of descent and distribution, because his first will had bequeathed all of his property to his wife who proceded him in death. (The first will of the testator is not before us but as we understand the parties' briefs, his first will bequeathed all of the property to his wife). There was testimony that authorized the jury to believe the testator loved his grandchildren and that the grandchildren loved him.

Mrs. Boyer, one of the appellees, testified in part in some detail with reference to the transactions that John Pool had with his father. She seemed to be familiar with the way that John and his father operated, particularly in the handling of their cattle and goats. She testified to some of the transactions that John had concerning the buying of goats in Arkansas, as well as some cattle. She also testified to certain checks that she found in her father's bank statements where her father had paid for some of the cattle and goats purchased by John. She also had in her possession some papers which she said evidenced transactions between her father and John, one being a note for $760; that she assisted John in the buying of some cattle in Oklahoma and her sister also participated in some of the transactions that Hohn had, but that she did not know how much money John made but that she and her sister got their money back that they put out on the Oklahoma deal. She testified to another transaction that she and her sister and testator had with John in which she said in effect that John owed her and her sister and her father $1,000, but that she and her sister got their part of the money out of the $1,000 and that their father absorbed this loss.

Testimony was tendered to the effect that Jasper Pool, prior to his death, borrowed approximately $4,100, for which he executed a deed of trust and note, and the court permitted Mrs. Boyer, over objection, to testify that this debt and deed of trust were made by Japer Pool in order to pay John's debt. (The man who made the loan said he looked to Jasper for the money, but...