Scott v. McKibban

• Decision Date: 22 October 1937
• Docket Number: No. 1701.,1701.
• Citation: 110 S.W.2d 72
• Parties: SCOTT et al. v. McKIBBAN et al.
• Court: Texas Court of Appeals

110 S.W.2d 72

SCOTT et al. v. McKIBBAN et al.

No. 1701.

Court of Civil Appeals of Texas. Eastland.

October 22, 1937.

Rehearing Denied November 19, 1937.

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Appeal from District Court, Taylor County; W. R. Chapman, Judge.

Proceeding by Mrs. R. L. Scott and husband for the probate of a will, contested by Mrs. Ida B. McKibban and husband. From a judgment of the district court denying probate on appeal from a judgment of the county court admitting the will to probate, the proponents appeal.

Judgment reversed, and cause remanded.

Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellants.

Smith & Eplen, of Abilene, for appellees.

FUNDERBURK, Justice.

A purported will of J. E. Adison, deceased, naming Mrs. R. L. Scott as executrix, was on application of Mrs. Scott admitted to probate in the county court. Mrs. Ida B. McKibban, a contestant, appealed to the district court. Upon a jury trial in the district court, judgment was rendered denying probate of the will, from which the proponent, Mrs. R. L. Scott, has appealed. Probate of the will was contested by Mrs. McKibban on two grounds — mental incapacity and undue influence. No issue on the ground of undue influence was submitted to the jury (nor established by uncontroverted evidence), and hence that ground of contest being waived, the judgment rests alone upon the finding of mental incapacity of the testator.

For convenience, Mrs. Scott will sometimes be referred to as proponent, Mrs. McKibban as contestant, and said J. E. Adison as decedent.

Based upon an assignment of error alleging in effect that the court erred in refusing to give a requested peremptory instruction in favor of proponent, the proposition is urged by her that the evidence was "wholly insufficient to authorize or justify the verdict of the jury to the effect that J. E. Adison was of unsound mind at the time he executed the will; and wholly insufficient on which to base the judgment denying the probate of the will." The assignment of error presents only a question of no evidence, as contradistinguished from a question (technically) of insufficient evidence to raise an issue of fact regarding the mental incapacity of the testator. Hall Music Co. v. Robertson, 117 Tex. 261, 1 S. W.2d 857.

We are of opinion that there was some evidence consisting largely of inconclusive circumstances in themselves but altogether requiring submission of the issue to the jury.

The court, over objection by the proponent, introduced three checks signed by the decedent for the purpose only of comparison with his signature to the will. The checks were dated October 26, 1927, December 28, 1928, and May 31, 1934, respectively, and the will was dated December 18, 1935. The objections stated were "that the signatures on the checks offered were immaterial, irrelevant and inadmissible, there being no question about the signature either to the checks or to the will, and that the offering of extraneous signatures and instruments bearing extraneous signatures was inadmissible for the purpose of comparison; and further that said checks were too remote in point of time to be properly admissible for comparison." The proposition urged by proponent to support her contention that the court erred in admitting said checks asserts, among other things, that the purpose of their admission was "to impeach the signature of J. E. Adison to the will on the 18th day of December, 1935, and to show that he did not execute the will made on said date * * * and [said instrument] was not in fact the genuine will of J. E. Adison, deceased." The record does not support the contention, we think, that such was the purpose of the evidence. The execution of the instrument, as a genuine will, was not disputed save only as its legal effect might be avoided by showing (1) the lack of testamentary capacity, or (2) undue influence. Both these issues were joined by the pleadings. We have no doubt that if the checks were admissible upon one of the issues they were also admissible upon the other. No question of the propriety of their admission would be affected by the fact that only one of the two issues was submitted as the basis of the judgment. Jones v. Jones (Tex.Civ.App.) 82 S.W.2d 1035.

In so far as the contentions made by the proposition now considered are supported by the objections made to the admission of the checks, they are (1) that the checks were too remote in time from the making of the will; (2) the checks and signatures thereon related to matters entirely foreign to the execution of the will.

We are cited to no authority supporting either of these contentions. The authorities cited relate to actions wherein the genuineness of the signature to the instrument was involved. In Corpus Juris, it is said: "Where the signature of the testator to the will is in his natural hand in conformity with his normal hand writing, it is evidence of mental and physical soundness. If the testator's name is signed differently from his usual mode of writing it, such circumstance may be considered on the question of testamentary capacity." 68 C.J. 484, § 91.

There was no error, we think, in the action of the court in admitting the testimony of the witness Parker to the effect that about a year or two before said J. E. Adison quit working for the witness, "Adison said that Flay Gunn (proponent) had married a trifling, good-for-nothing man; that he, Adison, was tired of giving her money for her husband to spend. That he was never going to help her any more as long as she lived with her husband and that if she would quit him he would be willing to help her, and he wrote her a letter to that effect."

This testimony was admitted over the objection that it was hearsay and not relevant to any issue involved in the suit, and entirely too remote and far away from the time of making the will in controversy to have any bearing or effect upon the will. When issues of testamentary capacity or undue influence are involved, much of the necessary evidence to establish or rebut such issues may be circumstantial. We think the testimony was admissible.

For this same reason we think there was no error in permitting the same witness to testify that the decedent told him many times that he was going to give what he had to his niece, Mrs. McKibban, and did not remember that decedent ever said he was going to leave anything to any person other than Mrs. McKibban. In the text of Corpus Juris, it is said: "On the issue of testamentary capacity, evidence is admissible of the testator's declarations of his testamentary intentions prior or subsequent to the execution of the will. Evidence of declarations of the testator as to his testamentary intentions made before or after the date of the will is admissible to prove capacity or, in connection with other evidence of incapacity; such evidence is admissible to prove mental unsoundness to execute a will." 68 C.J. 468, § 75.

After the witness Parker had testified that J. E. Adison told him a year or two before Adison quit working for him that appellant had married a trifling, good-for-nothing man, and that Adison had told him he was tired of giving her money for her husband to spend and that he was never going to help her any more as long as she lived with her husband, and that if she would quit her husband he would be willing to help her, and that he (Adison) wrote her a letter to that effect, the proponent offered to testify as a witness that she had never at any time solicited money from decedent, either by way of gift or borrowing, and that deceased never wrote her such letter at any time as testified to by the witness Parker. The court, upon objection excluded such testimony upon the sole ground that it was a transaction between the deceased and the witness and prohibited by article 3716 of the Statutes.

Complaint of the exclusion of this testimony upon said ground presents the most interesting, and generally important, question in this case.

Prior to 1871 three particular classes of persons, among possibly others, were incompetent to testify as witnesses in civil suits or actions. They were: (1) Negroes; (2) parties; and (3) persons interested. "At common law a party to an action was not a competent witness at the trial thereof." 70 C.J. p. 193, § 260; Kerr v. Cotton, 23 Tex. 411. "A person who, although not a party, was interested in the result of the action was also held incompetent." 70 C.J. p. 194, § 261; Osborn's Adm'x v. Cummings, 4 Tex. 10.

A statute enacted in 1871, provided in section 1 thereof: "That in the courts of this State there shall be no exclusion of any witness on account of color, nor in civil actions because he is a party to, or interested in, the issue tried." (Italics ours.) 6 Gammel's Laws, p. 1010. Section 2 of the same act declared: "In actions by or against executors, administrators or guardians in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court."

A mere reading of these two statutory provisions discloses an ambiguity in the use of the word "party." Was the word used in the sense of party to a civil action, or party to a transaction out of which an issue to be tried in such action arose? Otherwise stated: Did the words "a party to * * * the issue tried" mean the same as party to the action? This uncertainty was corrected in the 1879 revision of the statutes. R.S.1879, art. 2246, provided: "No person shall be incompetent to testify on account of color, nor because he is a party to a suit or proceeding or interested in the issue tried." (Italics ours.) That provision has remained unchanged through all subsequent revisions of the statutes, being now R.S. 1925, art. 3714. Two exceptions were made, one relating both to parties and ...