Ransom v. Iselt, 5034

Citation554 S.W.2d 42
Decision Date14 July 1977
Docket NumberNo. 5034,5034
PartiesSarah Boyd RANSOM, Appellant, v. Lorine ISELT et al., Appellees.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Allan I. Schneider, Giddings, Robert E. Perman, Smithville, for appellant.

Ralph A. Rash, Kuhn, Collins & Rash, Austin, for appellees.

McCLOUD, Chief Justice.

This is a will contest case wherein contestants, Lorine Iselt and Carolyn Dube, alleged that testator, George Brade, was acting under undue influence and lacked testamentary capacity when he executed his will dated August 28, 1975. The jury found that George Brade had testamentary capacity but that the making and executing of the instrument was procured by undue influence on the part of proponent, Sarah Boyd Ransom. Judgment was entered denying probate. Proponent, Sarah Boyd Ransom, has appealed. We reverse and render.

Contestants are the two daughters of George Brade. Proponent started dating Mr. Brade in 1974. Mrs. Luke Turner testified that she visited with Mr. Brade and proponent in September, 1975, and on that occasion Mr. Brade referred to proponent as his wife. They were never married, but proponent testified that she and Mr. Brade had on various occasions discussed marriage and they planned to marry "after Christmas." Dr. Robert Burns testified that Mr. Brade was "very depressed" around August and September of 1975. Mr. Brade died in December, 1975.

The rules to be followed are discussed in Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.1963):

". . . Thus, before a testament may be set aside on the grounds of undue influence the contestant must prove: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence. See: Stewart v. Miller, Tex.Civ.App. (1925), 271 S.W. 311, wr. refused; Olds v. Traylor, Tex.Civ.App. (1944), 180 S.W.2d 511, wr. refused.

The burden of proving undue influence is upon the party contesting its execution. It is, therefore, necessary for the contestant to introduce some tangible and satisfactory proof of the existence of each of the above stated elements of undue influence. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138."

Proponent contends there is no evidence to support the jury finding that the will was procured by undue influence on her part. We agree.

In considering this "no evidence" point, we will consider only the evidence and inferences which tend to support the jury finding under attack and disregard all evidence and inferences that would lead to a contrary finding. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974).

The will in question was signed by the decedent in the presence of Henry Harmes and Milton Brosch, officers of the Citizens State Bank, who signed the will as witnesses and who had known Mr. Brade for many years as a customer of the bank. The proponent was not present when the will was executed.

The will was prepared by the decedent's regular attorney, Michael Simmang, who testified that the will was prepared at the direction of Mr. Brade. He stated that proponent, Sarah Ransom, was not present when the will was prepared and she in no way told the attorney how the will was to be written. The attorney was not present when the will was executed.

Simmang stated that at the time he was preparing the will, Mr. Brade generally knew the nature and extent of his property; knew his two children and those who would have a natural claim on his bounty; and, knew that he was signing a will. Contestants rely upon the following testimony given by Simmang:

"Q. Okay. Do you think that by this last instrument we're talking about that's involved in this lawsuit, at the time you discussed the matter with him he understood the disposition of his property?

A. No, sir, I don't.

Q. On what do you base this conclusion?

A. I base it upon the fact when I discussed it with him the first time he wasn't sure of Mrs. Ransom's name.

Q. At any time during your discussion with Mr. Brade, in other words, the only reason you're basing your opinion that he didn't understand the disposition of his property, based on his statement to you he didn't know the correct spelling of the lady's name?

A. Well, not only that, when we discussed this

Q. Uh-huh.

A. evidently Mr. Brade had been consulting with another attorney. Later, I demised that this was probably a Roy Martin. Mr. Brade picked up this Will from the office, and I don't recall whether he got it from me or got it from my secretary, but at any rate it was picked up and was not signed and was not witnessed; and then several days later he brought it back with a handwritten note on a piece of paper that it looked like was torn off the bottom of the sheet,

Q. Uh-huh.

A. with certain corrections that I was to make in the Will. Namely, I was to add, I think, Mrs. Ransom's son, in the event that she preceded Mr. Brade. This note was signed by Roy Martin, and at that time I absolutely refused to have anything further to do with it; and I never saw it again until after Mr. Brade's death, and we went, I think with Mr. Durrow at the Citizens State Bank and got it out of his box, because the Will did name me as Executor."

The attorney's testimony discloses that the will was not signed when Mr. Brade picked it up, but his testimony is silent as to whether it was signed when Mr. Brade brought it back with the "handwritten note."

Roy Martin, an attorney in Austin, Texas, who had represented Sarah Ransom in the past, stated that he first got acquainted with Mr. Brade at Sarah's tavern or hamburger stand. He said that on one...

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2 cases
  • Henderson v. Sims, 1293
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 29 Noviembre 1979
    ...Stieler v. Stieler, 537 S.W.2d 954, 958, 959 (Tex.Civ.App.-Austin 1976, writ ref'd, n. r. e.); Ransom v. Iselt, 554 S.W.2d 42 (Tex.Civ.App.-Eastland 1977, writ ref'd n. r. e.). Judgment of the trial court is ...
  • Willenbrock's Estate, In re, 5464
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 24 Julio 1980
    ...Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138. See also Estate of Woods, 542 S.W.2d 845 (Tex.1976); Ransom v. Iselt, 554 S.W.2d 42 (Tex.Civ.App. Eastland 1977, writ ref'd n.r.e.) Contestants have merely shown that proponent had an opportunity to exert influence upon Elinda Willenbrock. Our......

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