Rothermel v. Duncan
| Decision Date | 10 July 1963 |
| Docket Number | No. A-9542,A-9542 |
| Citation | 369 S.W.2d 917 |
| Parties | Louis F. ROTHERMEL, Individually and as Independent Executor, Petitioner, v. Sarah R. Rothermel DUNCAN et al., Respondents. |
| Court | Texas Supreme Court |
W. H. Betts, Hempstead, for petitioner.
Roland B. Voight, Williams, Lee & Lee, Houston, McLain & Harrell, Conroe, J. C. McEvoy, Hempstead, for respondents.
This is a suit filed by Sarah R. Rothermel Duncan et al. in the County Court against Louis F. Rothermel, individually and as independent executor of the estate of Sallie A. Rothermel, contesting the validity of the will of Sallie Rothermel, deceased. On March 7, 1960, trial was held in the County Court, and the contest was denied. Upon the trial of the case in the District Court the plaintiffs pleaded both mental incapacity and undue influence, but the latter ground was the only issue submitted to the jury. The jury found that the contested will was the result of undue influence exercised upon the deceased by her son, Louis Rothermel. Based on the jury verdict the trial court entered judgment in favor of the contestants. The Court of Civil Appeals affirmed. , 365 S.W.2d 398.
The issue before this court is whether the record contains any evidence of probative force to support the finding of the jury that undue influence was exercised by Louis F. Rothermel in the execution of the will of Mrs. Sallie A. Rothermel. We have concluded that such evidence does not exist in this record. Therefore, the judgments of both the trial court and the Court of Civil Appeals are reversed.
We shall confine our statement of the evidence to that relied upon by the contestants to sustain the jury finding. The record reveals that Sallie Rothermel was the mother of three children; Louis, a daughter and Bill. In 1906 Sallie Rothermel's husband died. At the time of their father's death Louis was sixteen years of age and Bill was one. Upon the death of his father, Louis left school and assumed the responsibility of providing support for his mother, sister and Bill. Louis' sister died in 1916.
In 1918 Louis was married, and in 1920 Louis and his wife, Mrs. Rothermel and Bill moved from Pennsylvania to Houston, Texas. Since Bill was sixteen years younger than Louis, Mrs. Rothermel leaned more towards Louis than Bill for help and assistance, especially in the earlier years of her widowhood. Mrs. Rothermel did not remarry. The record reflects that at all times the Rothermel family was a close one, and that Louis continued to support his mother until investments made by him for and in Mrs. Rothermel's name became sufficient to provide for her. Mrs. Rothermel was equally devoted to her two sons, and in 1939 she executed her first will whereby her estate was devised equally to her two sons.
Subsequently, Bill and Louis associated in the very successful business of the Maritime Oil Company, and in 1952 Bill became a partner of Louis in this business. The partnership lasted until Bill's death in 1955. Mrs. Rothermel was greatly grieved over the loss of her younger son.
After Bill's death Mrs. Rothermel resided with Bill's family from October, 1955, to March, 1956. From March, 1956, to October, 1956, she resided with Louis. From October, 1956, to October, 1957, Mrs. Rothermel was in residence at an old ladies' home in Houston. On or about October 1, 1957, Louis took his mother to his farm in Waller County, some 50 miles from Houston. Thus, began the chain of events leading to the filing of this suit.
Louis maintained and operated a poultry and egg business on his farm and had employed a single woman named Mary Blumberg who cared for the business. From the time of her arrival at the farm, Mrs. Rothermel lived with Mary in her 4-room house on the farm. Mrs. Rothermel was then 93 years of age, and suffered from the common maladies of age: she was hard of hearing, her eyesight was bad, her hands shook, and she suffered from arthritis and diabetes. For several years Mrs. Rothermel's feeble condition required care and companionship-this became the responsibility of Mary Blumberg.
Soon after she was taken to the farm, Mrs. Rothermel fell and suffered a broken rib. On this occasion she was taken to a hospital in Hempstead, Texas, where she remained for two or three days. At the farm Mrs. Rothermel was 'very sparasely' visited by her other relatives.
Mrs. Rothermel was devoted to Louis; she trusted him completely and relied entirely upon him to handle her affairs, which he did. Louis took care of all of her business correspondence and affairs and signed her checks. All of Mrs. Rothermel's papers, including the 1939 will, were kept in Louis' safe-deposit box in Houston.
Louis' testimony reveals that in the latter part of 1957 or in the early part of January of 1958 his mother requested that he bring to her the 1939 will, which he did. The 1939 will remained in her possession for several days, and she conferred with Louis and informed him that she wanted to make another will and leave everything to him. Although he was aware of the possible double federal tax consequences of being the sole beneficiary of his mother, Louis did not try to explain this to his mother. Louis testified that he drew the new will in Houston, and either used the 1939 will or one of his own as a pattern, and that he suggested to his mother that her will provide that if he predeceased her, his daughter would be her executrix and that her property be divided equally among her grandchildren and great grandchildren. No attorney was consulted; and after the new will was drawn, Louis took it to his mother who kept it several days.
On January 30, 1958, the new will was signed by Mrs. Rothermel before two witnesses, Mary Blumberg and her brother, August Blumberg, who was another farm employee of Louis. The witnesses were gathered by Louis. The will was signed by Mrs. Rothermel without comments, questions or suggestions, and at a time when Louis was in the house but not in the room where the signing of the will took place. No one read or explained the will to her or saw her read the will.
After the will was signed, it was delivered to Louis by his mother. He took possession of the will and placed it in his safe-deposit box, and no one knew of its execution except the witnesses thereto and Louis until sometime after his mother's death. Mrs. Rothermel discussed the execution of this will with no one except Mary Blumberg. Mrs. Rothermel continued to live with Mary Blumberg until her death in October of 1958 at 94 years of age. The new will appointing Louis independent executor of his mother's estate was probated by the County Court on October 7, 1958.
After this suit was filed Louis went to the home of two witnesses at the trial to inquire if either of them had knowledge of any prior will of Mrs. Rothermel. It further appears that shortly after the probate of the will, and before this suit was filed, Louis made out checks for $1000 each: one was sent to Mary Blumberg, and a check in a like amount was mailed to each of his two nieces, two nephews (respondents herein), a daughter and two grandchildren, totaling $8000.
Other evidence in the record reveals that Mrs. Rothermel loved the children of her two sons equally. Disinterested witnesses had heard Mrs. Rothermel declare numerous times, within five years of her death, that she intended to leave her estate equally to her grandchildren.
It would unnecessarily lengthen this opinion to attempt to analyze each item of evidence which the contestants claim is some evidence of undue influence. mental incapacity and undue influence was alleged, and the record reflects that evidence was introduced in an effort to support both grounds.
The contestants select from the summarized evidence above three sets of circumstance which they deem sufficient to bring this case within the holding of this court in the case of Long v. Long, 1 133 Tex. 96, 125 S.W.2d 1034, that the evidence introduced would support a finding of the exercise of undue influence. The particular facts of this case which the contestants claim should support a similar conclusion are: (1) the fragile condition of Mrs. Rothermel due to age and sickness; (2) Louis, the beneficiary, 'generally looked after and supervised most of the business affairs and business interests of his mother'; and (3) the circumstances surrounding the signing of this will.
No two cases invloving undue influence are alike, and each case must stand or fall depending upon the legal sufficiency of the facts proved. Because of this it does not necessarily follow that it should be held in this case, as it was in the Long case, that the finding of undue influence has support in the record.
Undue influence in the procurement of a testament is a ground for its avoidance separate and...
To continue reading
Request your trial
-
Hyundai Motor Co. v. Vasquez
...that the witnesses to the disputed will were, at the time of its execution, in the employ of appellant"), rev'd on other grounds, 369 S.W.2d 917 (Tex.1963); Airline Motor Coaches v. Bennett, 184 S.W.2d 524, 528 (Tex. Civ.App.-Beaumont 1944) (affirming trial court's decision to allow: "Would......
-
Burkhalter v. Burkhalter
...Dion, 623 N.W.2d 720, 728 (N.D.2001); [841 N.W.2d 103]West v. Henry, 173 Ohio St. 498, 184 N.E.2d 200, 202 (1962); Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.1963). There are, however, other Midwestern states that adopt the same approach as Iowa. In a long line of cases, the South Dakota......
-
Cobb v. Justice
...mind when executing the document; and (3) that the person would not have executed the document but for the influence. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.1963). The contestant bears the burden of proving the elements of undue influence by a preponderance of the evidence. Evans v. ......
-
Jackson Walker, LLP v. Kinsel
...is so because implicit in the concept of undue influence lies the existence of mental or testamentary capacity. See Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963) (stating that "while testamentary incapacity implies the want of intelligent mental power, undue influence implies the exi......
-
Undue Influence, Detecting Elder Abuse, and the Duty to Report Financial Exploitation
...implies the existence of a testamentary capacity subjected to and controlled by a dominant influence or power.” Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963). When undue influence is established, the will or other document is ineffective. Id. “Rothermel v . Duncan, 369 S.W.2d 917, 91......
-
Contested matters
...the testament. • The execution of a testament which the testator would not have executed but for the influence. [ Rothermel v. Duncan , 369 S.W.2d 917, 922 (Tex. 1963).] Not every influence rises to the level of being “undue influence,” and the mere opportunity to exert an influence is not ......
-
Table of cases
...1968, no writ), §15:61 Robertson v. Gregory, 663 S.W.2d 4 (Tex. App. — Houston [14th Dist.] 1983, no writ), §5:04 Rothermel v. Duncan , 369 S.W.2d 917, 922 (Tex. 1963), §15:13 Rye v. Guffey Petroleum, 42 Tex. Civ. App. 185, 95 S.W. 622 (Civ. App. 1906, ref.), §9:25 S Schindler v. Schindler,......
-
Chapter 8-4 Valuable Options
...§ 254.002(a).[64] Tex. Est. Code § 254.002(b).[65] Tex. Est. Code § 254.002(a).[66] Tex. Est. Code § 254.002(c).[67] Rothermel v. Duncan, 369 S.W.2d 917, 023 (Tex. 1963); see also In re Estate of Graham, 69 S.W.3d 598, 609-10 (Tex. App.—Corpus Christi 2001, no...