Powell v. Powell, 1035

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Citation554 S.W.2d 850
Docket NumberNo. 1035,1035
PartiesDelbert Lee POWELL, Appellant, v. Jack J. POWELL et al., Appellees.
Decision Date11 August 1977

James R. Lewis, Ben E. Jarvis, A. D. Clark, Jr., Tyler, J. Glenn Turner, Jr. and James J. Harnett, of Turner, Hitchins, McInerney, Webb & Harnett, Fred M. Bruner, Bruner, Dorfman, Matlock & Hardin, Dallas, for appellant.

Jack W. Flock, Mike A. Hatchell, of Ramey, Flock, Hutchins, Grainger & Jeffus, Tyler, for appellees.

DUNAGAN, Chief Justice.

This is a will contest case. This case involves an application filed by Jack J. Powell and The First National Bank in Dallas for the probate of a written will and first codicil of N. P. Powell, deceased. The application for the probate of the will and codicil is contested by Delbert Lee Powell. N. P. Powell left a written will in which he named Jack J. Powell and The First National Bank in Dallas as co-independent executors of his estate. The will was duly executed by him on the 20th day of July 1972, and was duly witnessed, sworn to and acknowledged by him before a Notary Public. On March 25, 1974 N. P. Powell executed the first codicil to his last will and testament executed on July 20, 1972. N. P. Powell died in Smith County, Texas, on November 5, 1974. Appellee Jack J. Powell is a son of the decedent and was a beneficiary under the will. Appellant Delbert Lee Powell is also a son of the decedent and was disinherited in the offered codicil.

Jack J. Powell and The First National Bank of Dallas on November 12, 1974, made application to probate the deceased's will and codicil. The will and codicil were contested by Delbert Lee Powell, the appellant, on the ground of lack of testamentary capacity, revocation, and undue influence.

The case was tried to a jury. Appellant was unable to raise a fact issue on "undue influence" or "revocation" so the case was submitted to the jury on "testamentary capacity" alone. The jury answered those issues favorably to the proponents as to the said will and codicil. On the basis of that verdict, the court entered judgment probating the will and codicil, from which judgment this appeal is taken.

Appellant's appeal is not prosecuted upon a legal or factual deficiency of the evidence but upon various complaints to the admission or exclusion of evidence.

Appellant has presented 13 points of error for reversal. These points will be discussed in an order different from that followed by the appellant. Some points will be grouped.

Points of error numbers 1, 6 and 11 complain of the granting of appellees-proponents' motion in limine which appellant contends excluded certain admissible evidence.

The motion referred to only requires, as to certain matters of evidence, that appellant refrain from mentioning or otherwise disclosing to the jury the matters mentioned above without first taking the matter up with the court for a ruling thereon."

As the wording of the motion in limine clearly indicates, granting the motion was not a ruling on the admissibility of evidence. The motion was merely a procedural step to be followed prior to the introduction of evidence, which required that the counsel who was offering evidence to tender said evidence and obtain a ruling thereon outside the presence and hearing of the jury. In Bridges v. City of Richardson, 163 Tex. 292, 354 S.W.2d 366, 367 (1962), the court stated: "The purpose in filing a motion in limine to suppress evidence or to instruct opposing counsel not to offer it is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury with respect to matters which have no proper bearing on the issues in the case or on the rights of the parties to the suit. . . ." In Redding v. Ferguson, 501 S.W.2d 717, 722 (Tex.Civ.App. Fort Worth 1973, writ ref'd n. r. e.), the court said: "The purpose of a motion in limine is to avoid the injection into the trial, of matters which are irrelevant, inadmissible and prejudicial. . . . It also serves the useful purpose of raising and pointing out before trial, certain evidentiary rulings that the Court may be called upon to make. By its very nature, when properly drawn, its grant cannot be error. It is not a ruling on evidence. It adds a procedural step prior to the offer of evidence."

It is a well established rule of law in this state that an order granting a motion in limine, as in the instant case, does not preserve error. Redding v. Ferguson, supra; Alamo Express, Inc. v. Wafer, 333 S.W.2d 651 (Tex.Civ.App. Fort Worth 1960, n. w. h.); Hudson v. Smith, 391 S.W.2d 441, 449 (Tex.Civ.App. Houston 1965, writ ref'd n. r. e.); and Hartford Accident & Indemnity Co. v. McCardell, 369 S.W.2d 331, 335 (Tex.1963). Appellant did not properly preserve the alleged errors complained of in his points 1, 6 and 11.

Points 7, 12 and 13 violate Rules 320, 322, 374 and 418(c), T.R.C.P., for generality and failure to particularize evidence complained of or refer to the record where it may be found.

Point of error 7 asserts that "The court erred in refusing testimony and evidence concerning his desire to change his will as well as statements that he had in fact changed his will, inasmuch as such statements were admissible to show the state of mind of N. P. Powell."

From appellant's argument under this point, we learn that it is directed to testimony proposed to have been elicited from three different witnesses, Lem Hutchins, Betty Laird, and Laura Brown, and involved three or more separate statements by the deceased. Appellant attempted to preserve objection to those multiple statements by multiple witnesses in this assignment in the amended motion for new trial, which is altogether too broad. The assignment in the amended motion for new trial is deficient in that it fails to define with any degree of particularity either what witness or what statements it encompasses. With a point this broad, the trial court would be required to scan the entire 1,612 pages of testimony given, to pick out all offered statements by N. P. Powell regarding changes to his will, to guess or speculate which of those statements were covered by the assignment and, then, to assess the trial court's ruling, if any, after each of those statements. The assignment of error is too broad. It does not point out which witnesses and/or what statements are the subject of the assignment. Such assignment of error is in violation of Rules 320-322, T.R.C.P. As an improper, general assignment, no error may be predicated upon it. Rules 320-322, 374, supra; Casey v. Barkley, 527 S.W.2d 256, 262 (Tex.Civ.App. Corpus Christi 1975, writ ref'd n. r. e.); Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Finto v. Texas & N. O. R. Co., 265 S.W.2d 606, 607-608 (Tex.Civ.App. San Antonio 1954, n. w. h.).

As we understand appellant's points of error numbers 12 and 13 his complaint therein is of the admission of evidence regarding Delbert Powell's wealth, exclusion of evidence of Jack Powell's wealth, and exclusion of evidence of N. P. Powell's wealth. In the argument under these points we find no evidence set out which was alleged to have been admitted or excluded nor is there any reference to the record where such evidence may be found. Therefore we do not know what evidence the complaint is directed to. For this court to rule upon and dispose of these two points of error, we would be required to read the entire statement of facts and the five volumes of exhibits to find the matters complained of. Points of error 12 and 13 clearly violate the requirements of Rule 418(c), 1 T.R.C.P. Hidalgo v. Lechuga, 407 S.W.2d 545, 551 (Tex.Civ.App. El Paso 1966, writ ref'd n. r. e.); Thorpe Insulation Co. v. Rice, 353 S.W.2d 498, 500 (Tex.Civ.App. Eastland 1962, writ ref'd n. r. e.) and Sims v. Duncan, 195 S.W.2d 156, 161 (Tex.Civ.App. Galveston 1946, writ ref'd n. r. e.).

The assignments in the amended motion for new trial to which these points relate were as non-specific as the points in the brief. They did not set out, describe, or otherwise explicitly identify the evidence complained of in compliance with Rules 320-322, Texas Rules of Civil Procedure, so as to give the trial court a fair opportunity to assess his rulings. Frobese v. Anderson, 487 S.W.2d 818 (Tex.Civ.App. Texarkana 1972, mand. overruled); Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407, 409 (1943); Casey v. Barkley, supra.

Moreover the record reflects that appellant introduced without objection and without limitation the Federal Estate Tax Return on N. P. Powell's estate. That instrument details the deceased's total estate by list of items and value of every asset and piece of property owned by N. P. Powell at his death. The record reflects that appellant also introduced without objection or limitation the State of Texas Inheritance Tax Return which reproduces the same information. Additionally, appellee Jack Powell's wealth is fully disclosed in the record, a portion of which was introduced by appellant himself. Finally, there are references to Delbert Powell's wealth which was introduced without objection. These points are overruled.

Points of error 2, 3, and 4 involve excluded evidence.

Point 2 complains of the exclusion of testimony by Pearl Hartsfield concerning the deceased's relationship with one Betty Laird even though the point contains the words "relationships with other women." This testimony was:

"Q. Did you ever have any conversation with Mr. N. P. Powell about women other than Mrs. Bertha Powell?

"A. Well, he would talk about them, but you kind of just listened and didn't listen.

"Q. Did he ever mention Betty Laird to you?

"A. Yes he did.

"Q. What did he when did he mention her?

"A. He mentioned her after Mother's Day in May. It was sometime in '74.

"Q. All right. What did he say about her?

"A. Well, he had said he was going to leave there and and leave home and go where she was. I told him he wasn't...

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