Reynolds v. Park

• Decision Date: 18 September 1972
• Docket Number: No. 8278,8278
• Citation: 485 S.W.2d 807
• Parties: Marie Park REYNOLDS and Royce Park Carter, Appellants, v. Leona Blanche PARK, Appellee.
• Court: Texas Court of Appeals

Page 807

485 S.W.2d 807

Marie Park REYNOLDS and Royce Park Carter, Appellants, v. Leona Blanche PARK, Appellee.

No. 8278.

Court of Civil Appeals of Texas Amarillo.

Sept. 18, 1972.

Rehearings Denied Oct. 16, 1972.

Richards & Ferguson, Robert C. Ferguson, Dalhart, for appellants.

Herbert C. Martin, Amarillo, for appellee.

ELLIS, Chief Justice.

This is a will contest case. Leona Blanche Park, appellee, sought to have a will of her deceased husband, Sidney Hamilton Park, admitted to probate in the County Court of Sherman County. The will was dated October 27, 1970. Two daughters of the testator, Marie Park Reynolds and Royce Park Carter, appellants, contested this application to probate the will and in lieu of the contested instrument, applied for the probate of an earlier will and codicil dated September 18, 1953 and July 29, 1959, respectively. The county court admitted the October 27, 1970 instrument to probate thus denying the application to probate the will and codicil which had been tendered by the appellants. Appellants timely perfected their appeal to the 69th Judicial District Court, and the case was there tried de novo to a jury. The district court's judgment admitted to probate the October 27, 1970 will and denied the contestants' application to probate the instruments dated September 18, 1953, and July 29, 1959. Such judgment prompted this appeal.

Sidney Hamilton Park and Ruth M. Park executed a joint will on September 18, 1953, whereby the survivor was to take the estate, and, upon the death of the survivor or in case of simultaneous death, the appellants were to take a life estate, subject to certain limitations, with a gift over in fee simple to the grandchildren, if any, of such testator and testatrix. Ruth M. Park died on May 6, 1956, and her joint will was admitted to probate whereby Sidney Hamilton Park took her estate as beneficiary under her will. Sidney Hamilton Park married Leona Blanche Park, appellee, on July 2, 1957, and subsequently executed a codicil to his September 18, 1953 will, essentially bequeathing to Leona Blanche Park all of his separate property acquired after the death of his first wife and his share of the community property acquired during his marriage to Leona Blanche Park. In addition to the noted bequests, the codicil republished and redeclared the joint will which he had executed with his first wife. Sidney Hamilton Park was admitted to a hospital in Amarillo, Texas during the month of February, 1970. He underwent surgery during the period he was hospitalized and apparently sustained one or more strokes after his surgery but before being dismissed from the hospital sometime during May, 1970. Upon his release from the hospital he returned to his home in Sherman County, and his condition improved to the extent that he was able to walk with the aid of a cane. Mr. Park had a convulsion or seizure on October 17, 1970, and was rushed from his home to a hospital in Borger, Texas. He remained in the hospital until his death on November 5, 1970. On October 27, 1970, Mr. Park requested that an attorney be contacted so he could make a will. An attorney was called and he visited Mr. Park in the hospital to gather information for the preparation of the last will and testament. Later that day, Mr. Park executed the document which had been drafted and it was attested by two witnesses. Under the provision of this instrument, his estate was divided between his wife, appellee herein, and his two daughters, appellants herein, and it is this document that was admitted to probate.

Appellants, contestants of the October 27, 1970 will, based their contest on three grounds. By their pleadings in the trial court they contend that Sidney Hamilton Park did not sign the alleged will dated October 27, 1970; that he was of unsound mind and incapable of making a will on that date; and that he executed the document under undue influence from his wife, Leona Blanche Park. They also made application for the probate of the earlier will and codicil.

In the district court trial, two special issues were submitted to the jury for determination: (1) whether the testator possessed testamentary capacity on October 27, 1970, and (2) whether he signed the document in question bearing that date. An issue on undue influence was requested but it was not submitte by the court. The jury answered both of the submitted issues favorably to the appellee, proponent of the October 27, 1970 will.

In their first of eight points of error, appellants contend the trial court erred in admitting lay testimony, over timely objections, that the testator was of sound mind. It is appellants' position that a proper predicate had not been laid which would allow the witnesses to testify relative to the soundness of the testator's mind.

A careful review of the record reveals that all but one of the witnesses whose testimony is here complained of had known the testator for a number of years. Other than a witness who had spoken with the testator one or two days before he was admitted to the hospital, each of the witnesses had visited the testator in the hospital and observed him and conversed with him while he was there. There is no rigid rule or standard setting forth the proper predicate for qualifying a lay witness to give testimony as to the mental condition of a testator. The most definitive guide that has been established in this area of the law is that 'where a lay witness has had sufficient opportunity through personal contacts, conversations, association with and observation of the person in question to reasonably form an intelligent opinion as to such person's sanity, based upon his own first hand knowledge, he is qualified to express such opinion.' Santos v. Morgan, 195 S.W.2d 927, 930 (Tex.Civ.App.--Austin 1946, writ ref'd n.r.e.). Also see Miguez v. Miguez, 221 S.W.2d 293 (Tex.Civ.App.--Beaumont 1949, no writ). The determination of whether a given lay witness is qualified under this rule rests in the discretion of the trial court, and in the absence of an abuse of this discretion the admission of such testimony is not error. Guerra v. San Antonio Sewer Pipe Co., 163 S.W. 669 (Tex.Civ.App.--San Antonio 1914, no writ); Whatley v. McKanna, 207 S.W.2d 645 (Tex.Civ.App.--Eastland 1948, writ ref'd n.r.e.); Small v. Taylor, 54 S.W.2d 151 (Tex.Civ.App.--Austin 1932, no writ); Singleton v. Carmichael, 305 S.W.2d 379 (Tex.Civ.App.--Houston 1957, writ ref'd n.r.e.). The trial court's discretion extends not only to the qualification of the witness but also to the remoteness of his testimony. Greene v. Watts, 332 S.W.2d 419 (Tex.Civ.App.--Dallas 1960, no writ); Fulcher v. Young, 189 S.W.2d 28 (Tex.Civ.App.--Austin 1945, writ ref'd w.o.m.); Singleton v. Carmichael, supra. Although it has been held that a subscribing witness must qualify by stating facts upon which his opinion is based, Whatley v. McKanna, supra, even a conversation with the testator ten minutes prior to the execution of the will has been held sufficient to qualify the attesting witness to give his opinion as to the sanity of the testator. Mueller v. Banks, 273 S.W.2d 88 (Tex.Civ.App.--San Antonio 1954, writ ref'd n.r.e.). In view of the foregoing, we do not believe that the trial court abused its discretion in admitting the testimony of the proponent's witnesses. Appellants' first point of error is accordingly overruled.

In their second point of error, appellants complain of the court's instruction given in its charge in connection with the issue on testamentary capacity. The issue here involved is Special Issue No. 1, which was submitted as follows:

'Do you find from a preponderance of the evidence that Sidney Hamilton Park did not have testamentary capacity on October 27, 1970, when the instrument offered in probate was executed?'

The jury answered this issue,

'He did have testamentary capacity.'

The instructions immediately following this issue were:

'You are further instructed that to make a valid will, the person making the will must have testamentary capacity at the time of the execution of the will. By the term 'testamentary capacity' as used in this charge, is meant that the person at the time of the execution of the will has sufficient mental ability to understand the business in which he is engaged, and the effect of his act in making the will, and the general nature and extent of his property. He must also be able to know his next of kin and the natural objects of his bounty and their claims upon him. He must have memory sufficient to collect in his mind the elements of the business to be transacted and to hold them long enough to perceive, at least their obvious relation to each other, and to be able to form a reasonable judgment as to them.

'You are further instructed that the term 'testamentary capacity' and 'sound mind' have the same meaning.'

The appellants contend that the trial court erred in instructing the jury that the terms 'testamentary capacity' and 'sound mind' have the same meaning. The point of error is particularly urged in light of the nonexpert testimony which was admitted over appellants' timely objection. This point is based on the argument that having allowed some of the witnesses to testify to the soundness of the testator's mind and then instructing the jury that 'testamentary capacity' and 'sound mind' have the same meaning had the effect of confusing the jury as to whether or not the witnesses had testified as to the testator's legal capacity to make a will, which they are not allowed to do, or had testified as to the testator's mental condition, which is permissible. The landmark case of Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621 (1895), held that a witness, whether lay or expert, may not give testimony which is a legal conclusion as to whether a person has the mental capacity to make a will. This holding was reiterated in Carr v. Radkey, 393 S.W.2d 806 (Tex.Sup.1965); however, in that case the Texas Supreme...