Rodgers v. Fleming

• Decision Date: 29 February 1928
• Docket Number: (No. 848-4923.)
• Citation: Rodgers v. Fleming, 3 S.W.2d 77 (Tex. 1928)
• Parties: RODGERS et al. v. FLEMING et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

3 S.W.2d 77

RODGERS et al. v.FLEMING et al.^*

(No. 848-4923.)

Commission of Appeals of Texas, Section B.

February 29, 1928.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Application by Morris Fleming and another for the probate of the will of W. J. McDonald, deceased.A decree probating the will was affirmed (295 S. W. 326), and Florence Rodgers and others, contestants, bring error.Reversed and remanded.

A. P. Park, Sturgeon & Sturgeon, and Patrick & Eubank, all of Paris, Harrison, Woodruff & Holloway, of Brownwood, Phillips, Townsend & Phillips, of Dallas, and Rodgers & Rodgers, of Texarkana, for plaintiffs in error.

Claude Pollard, Atty. Gen., and Tom L. Beauchamp, Hutchison & Hutchison, Long & Wortham, and W. F. Moore, all of Paris, for defendants in error.

SPEER, J.

This most interesting case arises over the contest of the will of W. J. McDonald, sought to be probated in Lamar County.The will was ordered to be probated in the county court, and likewise on appeal in the district court, and the latter judgment was affirmed by the Court of Civil Appeals for the Sixth District.295 S. W. 326.

The residuary clause of the will is as follows:

"5.All the rest, residue and remainder of my estate I give, devise and bequeath to the regents of the University of Texas, in trust, to be used and devoted by said regents for the purpose of aiding in erecting and equipping an astronomical observatory to be kept and used in connection with and as a part of the university for the study and promotion of the study of astronomical science.This bequest is to be known as the W. J. McDonald observatory fund.As soon as my executors shall have paid off all charges against my estate, settled with all legatees and have the estate in shape to turn over the residue to the regents, they shall do so, using only such time to accomplish this as in their judgment is necessary, reasonable and proper.Upon receipt of such residue the regents shall proceed at such time and manner as in their judgment may seem best to execute the trust and they shall have full power and authority to administer and handle the same for the purpose of carrying out its purpose and objects, and in so doing they may apply all or any part of the income from the bequest and all or any part of the corpus of the bequest as they may deem proper to use towards such erecting and equipping the observatory, it being my intention that the regents shall have full power and authority to handle, use and appropriate this bequest, corpus and all accrued income in such manner as to them may seem best in order to carry out the object of the bequest, the only limitation on their authority and power being that the bequest is intended solely for the use and benefit of an astronomical observatory in one or all the ways hereinbefore mentioned.The regents shall have the power to sell any real estate at any time.

"All investments are to be made in such bonds and securities as are prescribed by law for the investment of the state common school fund.

"In handling the notes due my estate the regents are requested to use the utmost liberality and lenience in the matter of renewals and extensions consistent with safety."

Plaintiffs in error in their contest deny generally the allegations of the application for probate, and plead that:

"On the 8th day of May, 1925, the date of making said purported will, and prior thereto and up to and including the 8th day of February, 1926, the day of his death, W. J. McDonald, deceased, did not have testamentary capacity to make a will; was of unsound mind; and did not have mental capacity to know, understand, and appreciate the character, amount, and extent of his property or the objects of his bounty, or the real disposition he was making, or attempting to make, of his property by the instrument offered for probate."

The case was submitted upon a single special issue, as follows:

"Did or did not W. J. McDonald have testamentary capacity on May 8, 1925, at the time he executed the will in controversy?"

Accompanying the issue was an instruction defining "testamentary capacity," as follows:

"To make a valid will, the person making the will must have testamentary capacity at the time of the execution of the will.By testamentary capacity 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, 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.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."

The contestants requested the following special charge:

"If at the time of the execution of the will by W. J. McDonald on May 8, 1925, he was under the influence of an insane delusion or delusions affecting the disposition of his property which he was making, then you are instructed that he did not at said time have testamentary capacity.An insane delusion is the belief of the existence of a state of supposed facts which no rational person would have believed."

The case turns upon the correctness of the trial court's ruling in refusing this instruction.

To the assignments presenting this question, it is first contended by defendants in error that the instruction was properly refused, because there was no pleading by the contestants to justify its being given.Some of the contestants who intervened in the case did specially plead insane delusions of the deceased, but so pleaded the matter as to limit that issue (if it is a separate issue) to specific delusions.The evidence was much broader than this plea, and the instruction, it will be observed, is as broad as the evidence.The original contestants did not plead insane delusions, as such, at all.So that we are put to the decision of the question whether or not insane delusions, as affecting the deceased's testamentary capacity, must have been specially pleaded.

There is respectable authority, and perhaps excellent reason, for holding that such a plea is necessary to support a recovery by a contestant upon that ground.But we are of the opinion the matter has been definitely settled otherwise in this state by authorities of such eminence as would forbid our departure at this time.

Vance v. Upson, 66 Tex. 476, 1 S. W. 179, involved the contest of a codicil changing a will which had been previously probated for want of testamentary capacity.The trial court, among other things, instructed the jury as follows:

"If however, he had not the qualities or capabilities above enumerated, or if, at the time, he was laboring under an insane delusion, either in regard to his property, or the natural and proper objects of his bounty, which affected the disposition he was attempting to make, or of which delusion the papers were the offspring or fruit, then such a person was not in a condition to make a valid will, and a will propounded under those circumstances ought to be set aside, and held for naught."

The Supreme Court, through Justice Stayton, said of the charges:

"These charges presented the real issues made by the evidence as well as the pleadings in the case."

The opinion does not disclose what the pleadings were, but an examination of the original record in the office of the clerk of the Supreme Court discloses that the contestants pleaded:

"That, at the time the same purports to have been written, the said James Vance(the testator) was insane and not capable of making a lawful will."

The pleadings did not otherwise plead the want of testamentary capacity.

Prather v. McClelland, 76 Tex. 574, 13 S. W. 543, was likewise a will case, where the contest was upon the ground of want of testamentary capacity.In that casethe court charged the jury:

"2.To find this will or codicil valid the testator must have been of sound mind at its execution, and by this is meant that he must have been capable of understanding the nature of the business he was engaged in, the nature and extent of his property, the persons to whom he meant to devise and bequeath it, the persons dependent upon his bounty, and the mode of distribution among them; that he must have had 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 relations to each other, and be able to form a reasonable judgment as to them; and that he was not under the influence of an insane delusion, either in regard to his property or the natural and proper objects of his bounty, which affected the disposition he was about to make.

"3.If, however, he had not the qualities and capabilities above enumerated, or if at the date of the will or the date of the codicil he was laboring under an insane delusion, either in regard to his property or the natural and proper objects of his bounty, which affected the disposition he was then attempting to make, or of which delusion the papers were the offspring or fruit, then he was not at such time in a condition to make such will or codicil; and if you find this will or codicil propounded under such circumstances the instrument, if either, so propounded ought to be set aside, and as to it you will find against the proponents and in favor of the contestant, stating in your verdict plainly which, if either or both, you so find should be set aside.

"4.By insane delusion is meant the belief of a state of supposed facts which no rational person would believe."

The court said:

"With regard to all other assignments upon charges given and refused, we deem it sufficient to say that we think the charges given were substantially correct, and in so far as the charges refused embraced correct prop...