Scott v. Townsend

• Decision Date: 20 May 1914
• Docket Number: (No. 2664.)
• Citation: 166 S.W. 1138
• Parties: SCOTT et al. v. TOWNSEND et al.
• Court: Texas Supreme Court

166 S.W. 1138

SCOTT et al. v. TOWNSEND et al.

(No. 2664.)

Supreme Court of Texas.

May 20, 1914.

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

Contest of the will of Winfield Scott, deceased, by Mrs. Georgia Scott Townsend and another against Mrs. Elizabeth Scott and others. Judgment in the district court for contestants, on appeal from the county court, was affirmed by the Court of Civil Appeals (159 S. W. 342), and contestees bring error. Reversed and remanded.

Capps, Cantey, Hanger & Short, of Ft. Worth, Williams & Stedman, of Austin, and Stephens & Miller and A. J. Clendenen, all of Ft. Worth, for plaintiffs in error. McLean, Scott & McLean, Spoonts, Thompson & Barwise, and R. B. Young, all of Ft. Worth, for defendants in error.

PHILLIPS, J.

The case is before the court on petition for writ of error, filed in the Court of Civil Appeals prior to July 1, 1913 to have reviewed the judgment of the honorable Court of Civil Appeals for the Second District, affirming the judgment of the district court of Tarrant county setting aside the probate by the county court of an instrument therein admitted to probate as the last will of Winfield Scott, and annulling it. Answer having been made to the petition, we may determine the case.

The suit was instituted by Mrs. Georgia Scott Townsend, the daughter of Scott, joined by her husband, the substance of the allegations of her petition in the district court being that the execution of the purported will, which was dated September 29, 1909, was procured by Mrs. Elizabeth Scott, the second wife of Scott, and who survived him, through undue influence by her exerted, which he was unable to resist, and of which the will was the immediate result; that it did not represent his own will in respect to the disposition of his estate, but the wishes and will of Mrs. Elizabeth Scott, whose purpose was to accomplish practically the disinheritance of the contestant, Mrs. Townsend, and make herself and the minor son of herself and Scott, Winfield Scott, Jr., the chief beneficiaries of his estate. Allegations were also made of Scott's want of mental capacity at the time the will was made, and that Mrs. Scott procured the execution of the will by fraudulently agreeing to herself execute a will, which she failed to do; but in the district court the only issue made by the contest submitted to the jury was that of undue influence. The contest failed in the county court, but, as stated, the judgment of the district court on a jury verdict was favorable to the contestant.

For a proper understanding of the questions dealt with in this opinion and their relation to the issue presented by the contest, the following is a sufficient statement of the case as gained from the findings of the honorable Court of Civil Appeals:

The testator, Winfield Scott, was a man of robust physique, strong-willed, of good business judgment, and had accumulated by his own efforts his entire fortune of approximately $3,000,000, according to the inventory and appraisement filed in connection with the probate of his will, his indebtedness at the time of his death, after the application of $100,000 collected upon life insurance policies and used for that purpose, being approximately $800,000. He was in a normal condition of mind at the time he executed the will in dispute, and at all other times to the date of his death, and there was no evidence introduced upon the trial indicative of his want of testamentary capacity. His first marriage was in 1877. The only child of that marriage was the contestant, Georgia Scott Townsend, who was born in 1878, a few weeks before the death of her mother. In the year 1884 he married Mrs. Elizabeth Scott, the mother of Winfield Scott, Jr., the only child of that marriage, born in November, 1901, and accordingly about eight years old at the time of the execution of the will in September, 1909. Following the death of her mother in 1878 Mrs. Townsend lived with her grandparents in Missouri until September, 1886, when she was placed by her father and stepmother, Mrs. Elizabeth Scott, in the Ursuline Convent, a school at Dallas, Tex. She attended this school for several years, thereafter living with her father and Mrs. Scott until her marriage in 1897 with John T. Carter, which was contracted in opposition to the wishes both of her father and Mrs. Scott. During this marriage she lived in Dallas. She married her present husband, John R. Townsend, in 1905; their minor child being the Winfield Scott Townsend referred to in the will.

On March 4, 1898, Mrs. Townsend, then Mrs. John T. Carter, joined by John T. Carter, executed to her father a deed conveying to him her inherited interest in the community estate of his first marriage. It recited that her father had maintained and supported her, and had, on March 12, 1895, conveyed to her lots 1 and 2 in block 115 in the city of Ft. Worth, with a frontage of 50 feet on Main street, which had cost him approximately $15,000 and upon which he was then erecting a three-story brick building for her, and that the conveyance it expressed was made for such consideration and the further consideration that her father should complete the building on the lots named. It also contained this recital: "In connection with the consideration for this instrument, it is understood that the said lots Nos. 1 and 2, with the building being erected thereon, is of value far in excess of the interest which the said Mrs. Jno. T. Carter inherited from her mother. (Of course this instrument is not intended in any way to affect the interest of the said Mrs. Jno. T. Carter as one of the heirs at law in the estate of the said Winfield Scott on his death.)"

On April 6, 1903, her father conveyed to Mrs. Townsend, then Mrs. Carter, lots 8 and 16 in block B-7, Daggett's addition to the city of Ft. Worth, extending between Main and Houston streets with a depth of 200 feet and a frontage of 50 feet upon each street, reciting as its consideration her and her husband's conveyance to her father of lots 1 and 2 in block 115, which, as stated, had been conveyed to her in 1895. Scott gave to Mrs. Townsend during her first marriage a home in Dallas costing $8,000, and later another home in Colorado Springs, Colo., costing $11,500, and from time to time money for her personal expenses, automobiles, a horse and buggy, jewelry, etc.

The will was executed by Scott, in September, 1909, as stated, at Ft. Worth, approximately two years before his death, which occurred at Ft. Worth in October, 1911. At the time of its execution he was temporarily residing with his wife and minor son in St. Louis, Mo., later resuming his residence at Ft. Worth. He had spent the summer of that year in Europe with Mrs. Scott and the boy, Winfield Scott, Jr., accompanied by a colored nurse, Rose Hill, the witness hereafter referred to by that name, the party returning to St. Louis early in September. After his return he made a trip to Ft. Worth, arriving there about September 24th, and while there the will was prepared, and, on the 29th of September, 1909, executed. A few days before the date of its execution Scott carried to Judge George Miller, his attorney, a former will, executed in 1905 and then in force, with a list of the property he desired to devise to each beneficiary, and employed and directed him to prepare the will in controversy. It was prepared by Judge Miller accordingly, with a codicil attached to the original draft at Scott's specific direction, the will and the codicil both being read over to him before execution. At this time Mrs. Elizabeth Scott was in St. Louis; her return to Ft. Worth not occurring until the January following. The beneficiaries named in the will are the testator's wife, Mrs. Elizabeth Scott, his son, Winfield Scott, Jr., his daughter, Mrs. Townsend, the contestant, and her son, Winfield Scott Townsend. Mrs. Scott and A. B. Robertson, a business associate of the testator, were named as executors.

The will recites that a large part of the property held by the testator was community property of himself and Mrs. Elizabeth Scott; that he had theretofore caused to be transferred to her as her separate property certain lots in the city of Ft. Worth, designated in the will, which had been paid for out of their community funds, and which were of the aggregate value of $500,000. There follows this recital a devise to Mrs. Elizabeth Scott of specific property in Ft. Worth. By a further provision the residue of his estate, remaining after the payment of all debts and expenses of executing the will and not specifically disposed of by the will, was devised to Mrs. Scott. The value of the property devised to Mrs. Scott, as fixed by the appraisers, was approximately $355,000.

In respect to Mrs. Townsend the will recites that the value of the community estate of the testator and her mother, his first wife, was approximately $20,000; that during her infancy he had supported and educated her in a manner suitable to her social station, and at an expense of more than the income of her part of such community estate, and that in settlement of her interest in the community estate of her mother and himself, and as an advancement out of his own estate, he had given her lots 8 and 16 in block B-7, Daggett's addition to the city of Ft. Worth — the same property described in his deed to her of April 6, 1903, above referred to, and in return for which conveyance it appears Mrs. Townsend, then Mrs. Carter, had deeded to him the property previously conveyed to her by his deed of March 12, 1895 — which were of the value of more than $200,000; and that he had also given her a home in Denver, Colo., wherein she then resided with her husband and son, of the value of $15,000. There follows this recital a devise to Mrs. Townsend of a life estate in four and a fraction lots in Ft. Worth, specifically described, with remainder over after death to her son, Winfield Scott Townsend, and...