Seigler v. Seigler, 16587

• Decision Date: 22 January 1965
• Docket Number: No. 16587,16587
• Citation: 386 S.W.2d 849
• Parties: D. H. SEIGLER, Sr., Appellant, v. Ernest SEIGLER et al., Appellees.
• Court: Texas Court of Appeals

Page 849

386 S.W.2d 849

D. H. SEIGLER, Sr., Appellant, v. Ernest SEIGLER et al., Appellees.

No. 16587.

Court of Civil Appeals of Texas, Fort Worth.

Jan. 22, 1965.

Rehearing Denied Feb. 19, 1965.

Vincent Stine, Henrietta, Humphrey, Gibson & Darden, and Lee Humphrey, Wichita Falls, for appellant.

Clyde Suddath, Henrietta, Jones, Fillmore, Robinson & Lambert, and Clyde Fillmore, Wichita Falls, for appellees.

LANGDON, Justice.

This is a will contest case. The testator, A. R. Seigler, died on February 10, 1963. His last will and testament was executed on November 8, 1961. Application for its probate was made in Wichita County, Texas, on February 14, 1963, by D. H. Seigler, Sr., appellant, who was named as the principal beneficiary in such will. The appellees, Ernest Seigler and his brother and sisters, all of whom were the children of A. R. Seigler, challenged the jurisdiction of the Wichita County Court of hear and determine the application for probate. The cause was thereafter transferred to Clay County. After hearing, probate of the will was denied and an appeal taken to the District Court for a trial de novo. The case was tried to a jury. It found that at the time A. R. Seigler executed the will dated November 8, 1961, that (1) he was acting under undue influence of D. H. Seigler, Sr., and (2) that he was not of sound mind. On February 6, 1964, judgment based upon the verdict of the jury was entered.

The appellant's appeal is based upon assignments contending the court erred because: (1) it permitted the contestants (appellees) to open and close the arguments; (2) there was no evidence or insufficient evidence to support submission of the undue influence issue or the jury's answer thereto and its submission constituted a comment on the weight of the evidence; (3) submission of the issue on unsound mind and the jury's answer thereto is so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust; and (4) the last two points complain of the appellees' closing argument. We affirm.

Before any examination of the jury was commenced the appellees (contestants) by both oral and written motions admitted to and assumed the burden of proof upon the only issues involved, namely, undue influence and lack of testamentary capacity plead by them by way of affirmative defenses. The motions admitted the proponent's (appellant's) allegations and acknowledged his right to recover 'except in so far as such right and recovery 'except in defeated by the pleadings and the evidence presented by contestants (appellees).' On the basis of these motions the appellees urged the court to grant them the right to interrogate the jury first, to present their evidence first and to open and close the arguments. The Court overruled the motions in so far as the interrogation of the jury and the presentation of the evidence was concerned, but, after the evidence was in and the charge prepared, granted them the right to open and close the arguments.

This action of the Court was proper in our opinion since the burden of proof on the whole case under the pleadings and on the issues submitted by the Court's charge rested upon the appellees and because of their admission that appellant would be entitled to recover except in so far as he may be defeated in whole or in part by the allegations in appellees' answer constituting a good defense which may be established on the trial. 'The admission shall not serve to admit any allegation which is inconsistent with such defense, which defense shall be one that defendant (appellees) has the burden of establishing.' Rules 266 and 269, Texas Rules of Civil Procedure and authorities cited in Vernon's Texas Rules of Civil Procedure.

The grounds of undue influence and testamentary incapacity for the voidance of a will are separate and distinct in nature and either is sufficient to set aside a will.

In considering the record and the evidence as a whole we have concluded that the jury's findings of nudue influence and incompetence on the part of the decedent at the time of the execution of the 1961 will are well founded on ample evidence and not against the great weight and preponderance thereof.

'If the conclusion is reached on appeal that a decedent was incompetent, the court need not determine whether the evidence supports a finding by the jury on the issue of undue influence.' 61 Tex.Jur.2d, p. 501, Sec. 339.

We will therefore confine our opinion to the question of testamentary capacity. A portion of the extensive testimony on this question is summarized: A. R. (Albert) Seigler, testator, was seventy-eight (78) years of age on November 8, 1961, when the will in question was executed. He had resided in Clay County, Texas for more than fifty (50) years. He could not read or write.

His first wife was Callie Seigler. They were the parents of appellees. During their marriage they acquired 705 acres of land in Clay County on which they resided until June, 1941, at which time she died intestate. On her death her undivided onehalf of the property, including the land, cattle and $12,000 in the bank, was inherited by the five children, appellees herein. The children gave their interest in the personalty to their father, A. R. Seigler. In 1943 four (4) of the children transferred their interest in the land to their father for a nominal consideration. The fifth child transferred her interest to her father in 1946. The bulk of the estate resulted from discovery and production of oil from the above land.

On February 12, 1946, A. R. Seigler married Ila Cunningham Seigler and they lived together in Clay County for approximately fifteen (15) years.

On August 7, 1957, A. R. Seigler executed a will in which he named his five children as his sole devisees, and sometime during the same year he suffered a severe congestive heart attack which caused him to be hospitalized on two different occasions. During this period he was treated and cared for by Dr. R. E. Hurn of Henrietta, Texas.

Early in 1961 A. R. Seigler and Ila were separated and later divorced. After the divorce he lived with his son Ernest on the latter's farm in Clay County for about six (6) months, until on July 26, 1961, he voluntarily entered Gray's Rest Home in Henrietta (Clay County).

A few days after his entry into the Rest Home his half brother, D. H. (Dave) Seigler, Sr., made his appearance.

On November 7, 1961, Dave Seigler took A. R. Seigler to Wichita Falls, Texas, located in an adjoining county, and returned him to the Rest Home on the afternoon of November 8, 1961. On the latter date, while in Wichita Falls, A. R. Seigler executed the will made the subject of this suit, in which he left the bulk of his estate to his half brother Dave, and named the latter's son as contingent devisee. Under the will he left $1.00 each to four of his children and $5,000 to one daughter. D. H. (Dave) Seigler, Sr., was named executor of the will without bond. He is the proponent of the will and appellant herein.

A. R. Seigler, on his return from Wichita Falls, continued as a guest in Gray's Rest Home from November 8, 1961, the date of the will under contest, until November 23, 1961.

The will was prepared by and executed in the offices of attorneys selected by D. H. (Dave) Seigler. The decedent was taken to and from the office of the attorneys by Dave Seigler, who remained with him at all times. Dave is a resident of Wichita County, which adjoins Clay County. In spite of the geographical nearness, the half brothers had very little association. During the fifteen year period from 1946 to 1961 they had seen one another on two occasions, including one time at a funeral. There is nothing in the record to indicate that A. R. Seigler was ever acquainted with or had any association with D. H. Seigler, Jr.

There is testimony that prior to his physical and mental deterioration, A. R. Seigler disliked and distrusted Dave Seigler and had on occasions made derogatory comments concerning him which touched upon his honesty and integrity. There was testimony that Dave had 'beat' him and other brothers and sisters out of their father's estate, leaving A. R. Seigler with a pair of mules. The decedent was proud of his sons and daughters and had on more than one occasion expressed a desire to leave all of his estate to them. This desire was accomplished by his will of August, 1957.

It would appear that the later actions of A....