Reynolds v. Porter

• Decision Date: 23 November 1932
• Docket Number: No. 7726.,7726.
• Parties: REYNOLDS et al. v. PORTER et al.
• Court: Texas Court of Appeals

54 S.W.2d 1086

REYNOLDS et al. v. PORTER et al.

No. 7726.

Court of Civil Appeals of Texas. Austin.

November 23, 1932.

Appeal from District Court, Schleicher County; Jno. F. Sutton, Judge.

Proceeding by Vernon Porter and others to probate the will of Jerome Porter, deceased, opposed by Mary Myrtle Reynolds and others. Will was ordered probated in county court, and contestants appeal by certiorari to the district court. From a judgment for proponents, contestants appeal.

Affirmed.

W. A. Wright, C. G. Russell, and C. H. Tupper, Jr., all of San Angelo, for appellants.

James Cornell and Collins, Jackson & Snodgrass, all of San Angelo, for appellees.

BLAIR, J.

This suit arose in the county court by an application to probate the will of Jerome Porter, deceased.

The estate of Jerome Porter consisted of a ranch, which he devised as follows: To Vernon Porter, a son, an undivided one-half interest; to Mary Myrtle Reynolds, a daughter, an undivided one-sixth interest; to George Romberg, John Romberg, Dora Romberg Dennis, and Margaret Romberg Young, children of Addie Bell Romberg, a daughter who predeceased testator, an undivided one-sixth interest; and to C. E. Davidson, a lifetime friend and benefactor of testator, an undivided one-sixth interest.

Mary Myrtle Reynolds and the Romberg children, appellants here, contested the will on the ground that Jerome Porter was mentally incompetent to execute it, and that its execution was induced by the undue influence of Vernon Porter over testator. Vernon Porter and C. E. Davidson joined the executors as proponents of the will, and these are appellees here.

The contest of the will was heard in the county court, and the will was ordered probated. Appellants appealed by certiorari to the district court, and on a trial de novo the jury found that testator was mentally competent to execute the will, and that its execution was not procured by the undue influence of Vernon Porter. Judgment was accordingly rendered for proponents of the will; hence this appeal.

Appellants contend, first, that the court erred in striking from their petition for certiorari the pleadings of Vernon Porter, as next friend of his father, filed in a suit instituted before the will was executed, against the Texas Live Stock Loan & Commission Company, seeking to cancel his father's contract to purchase certain shares of stock from said company, alleging, in substance, that his father was then over eighty years of age, very feeble in mind and body, incapable of attending to business matters, or of making contracts of any sort; and that, because of such condition, he (Vernon Porter) had been conducting for a number of years prior thereto all business matters for his father; and, second, that the court erred in refusing to permit the introduction in evidence of a certified copy of the pleadings for three purposes, as follows:

(1) As tending to impeach the testimony of Vernon Porter given on the trial of this case that his father was of sound mind when he executed the will.

(2) As being relevant and material evidence upon the issue of undue influence on the part of Vernon Porter over his father in the execution of the will.

(3) As tending as direct evidence to establish the mental incompetency of Jerome Porter to execute the will.

It was not error to strike from the petition for certiorari the pleadings of Vernon Porter in his suit as next friend of his father against the Live Stock Loan Company. If these pleadings were material to this case, they were only so as evidence tending to either impeach the testimony of Vernon Porter given in this case, or to establish his undue influence over testator, or the mental incompetency of testator to execute the will. It was not necessary to plead the evidence by which appellants intended to impeach the witness, or by which they intended to establish undue influence or mental incompetency of testator. The certified copy of these previous pleadings could have been introduced in evidence, if admissible, without pleading them; and we pass to a consideration of their admissibility.

The pleadings in the previous suit were filed by Vernon Porter as next friend of his father before his father executed the will giving him an undivided one-half interest in the property in controversy. The fundamental basis for the introduction in evidence of such pleadings is upon the theory of declarations or admissions against the interest of declarant. Under the facts stated, the rule as to their inadmissibility is well stated in 17 Tex. Jur. 554, § 229, as follows: "To be admissible the declarations or admissions must be against the proprietary or pecuniary interest of the person making them. He must have an interest in the subject matter of the declarations at the time when they are made, and, if he has no interest at that time, the declarations are not admissible against him though he subsequently acquires an interest. * * * And statements of a person claiming under a will to the effect that the testator is insane or incompetent to make a will, made before the will is executed, are not admissible against him on a contest of the will."

The following authorities are cited by and support the text quoted: Stewart v. Miller (Tex. Civ. App.) 271 S. W. 311 (writ of error refused); Gay v. Jackman (Tex. Com. App.) 252 S. W. 1042; Id. (Tex. Com. App.) 254 S. W. 927, reversing (Tex. Civ. App.) 237 S. W. 315; Bell v. Preston, 19 Tex. Civ. App. 375, 47 S. W. 375, 753; Reed v. Phillips (Tex. Civ. App.) 33 S. W. 986; Prather v. McClelland 76 Tex. 574, 13 S. W. 543; Id. (Tex. Civ. App.) 26 S. W. 657; Adams v. Adams (Tex. Civ. App.) 253 S. W. 605, writ of error dismissed for want of prosecution, 114 Tex. 582, 278 S. W. 1114. See, also, 22 C. J. 234.

Appellants insist, however, that Vernon Porter did have such an interest in his father's property, one-half of which was later devised to him by the will, at the time he filed the suit to cancel the contract for the purchase of the loan company stock, either as next friend of his father or as managing partner of his business, to admit the pleadings in evidence as declarations or admissions against interest, and as tending to impeach Vernon Porter, and to establish his undue influence over testator, or the mental incompetency of testator.

The evidence does not disclose any interest Vernon Porter had in his father's property when he brought the suit. His father could have disposed of it all by sale or as he later did by will without the consent of Vernon Porter, or without regard to the pending suit filed by Vernon Porter. The basis of the suit filed was to cancel an improvident contract of the father to purchase stock in the loan company. The only way the property in question could have been injured by the contract was that it might have been subjected to the payment of the improvident contract. There is nothing in the evidence to show how the act of bringing the suit was hostile to the father, or that such act constituted a threat, or undue influence by Vernon Porter over him. The charge that Vernon Porter brought the suit so that he might later acquire a larger interest in his father's property is speculative, and has no foundation in the evidence. The suit was filed but not tried. The pleadings were not sworn to by Vernon Porter; but he testified that he gave the facts or information upon which the attorneys drew the pleadings. So the pleadings were mere pleadings, and not testimony.

But, if Vernon Porter did have such an interest in the property of his father, which we do not concede, so as to admit in evidence the pleadings in his previous suit, the particular pleadings were properly excluded on the objection of appellees that the allegations were mere legal conclusions of the pleader, incompetent as evidence on the issues involved in this suit, and therefore could not be considered on either of the three theories contended for by appellants. In substance, Vernon Porter alleged that his father was at that time feeble in mind and body, incapable of attending to business matters of any sort, and for that reason he attended to all of his father's business matters. The legal effect of these pleadings was to allege the ultimate fact or legal conclusion to be established in the case; that is, that Jerome Porter was incompetent to make the contract for the purchase of the stock. The authorities are uniform in holding that such a declaration or testimony is incompetent because a mere legal conclusion or opinion of the witness.

In the case of Curtis v. Adams (Tex. Civ. App.) 275 S. W. 206, 207 (writ of error refused), it was held as follows:

"In the trial of cases of this character it is permissible for a witness, who is qualified, to state whether in his opinion the mind of the testator is sound or unsound; but he cannot give his opinion as to the mental capacity of the testator to perform the act then under investigation. In Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64, the Supreme Court used this language:

"`No witness, whether he be a subscribing witness, an expert, or a nonexpert, will be permitted, over proper objection, to state his opinion of the capacity of the testator, or the maker of any contract, to make such instrument, when such opinion assumes the shape and has the effect of being an opinion upon the legal capacity of the party in question.'"

In the case of Pickering v. Harris (Tex. Com. App.) 23 S.W.(2d) 316, 320, a suit to cancel...