Simon v. Middleton

• Decision Date: 10 June 1908
• Parties: SIMON et al. v. MIDDLETON et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

112 S.W. 441

SIMON et al. v. MIDDLETON et al.^†

Court of Civil Appeals of Texas.

June 10, 1908.

On Rehearing, June 29, 1908.

Appeal from District Court, Washington County; Ed. R. Sinks, Judge.

Application by J. R. Simon and others for the probate of the will of Alexander Simon. From a judgment of the county court admitting the will to probate, contestants Mollie Middleton and others appealed to the district court, where probate was refused, and proponents appeal. Reversed and remanded.

W. W. Searcy and Hutcheson, Campbell & Hutcheson, for appellants. Mathis, Buchanan & Rasberry and Louis Phillips, for appellees.

FLY, J.

This suit grows out of the contest of the will of Alexander Simon, deceased, of date October 4, 1904, which was, at the instance of appellants, probated in the county court; but probate of which was, on appeal by appellees to the district court, refused. In the will all the property, except bequests of $5 each to Mollie Middleton, Leah Martin, and Cain Simon, appellees herein, was bequeathed to Julia R. Simon, wife of the testator, with full power of disposal; what remained at her death being bequeathed to Louis Simon, James H. Simon, Alexander Simon, Jr., Rosa Rubenstein, and Hannah Folz, children of the testator and Julia R. Simon, and appellants herein. Appellees, who are also children of the testator and Julia R. Simon, contested the will on the grounds that the testator was of unsound mind when he made the will, that the signature to the will was a forgery, that the will was not attested by two witnesses in the presence of the testator, and that it was procured through fraud and undue influence on the part of appellants. The cause was submitted to the jury on the issue of fraud and undue influence alone, and a verdict was returned for appellees and against the probate of the will.

The "undue influence" which will invalidate a will consists of substituting the will of the person exercising it for that of the testator. It is an influence which destroys the free agency of this testator, and places him in a position where he is dominated by another, which acted directly on his mind at the very time when he executed the will. As said by this court in Wetz v. Schneider, 34 Tex. Civ. App. 201, 78 S. W. 394: "Persuasion, entreaty, cajolery, importunity, argument, intercession, and solicitation are permissible, and cannot be held to be undue influence, unless they subverted and overthrew the will of the testator and caused him to do a thing that he did not desire to do."

Fraud or undue influence can be proved by circumstances. In fact, it is usually the case that it cannot be directly proved, but must be shown by circumstances. Each one of the circumstances, however, must point towards the end sought, and all of them, taken together, must in a reasonably satisfactory and convincing manner establish such fraud and undue influence. The facts and circumstances must necessarily and logically lead to the inference that fraud or coercion was employed, and that the will does not represent the real desire and intention of the testator. In the investigation of fraud or undue influence there must be a wide range permitted. As said by Underhill, in his Law of Wills (section 132): "The nature of the relations and dealings between the testator and the beneficiaries, the extent of the property of the testator, his social and commercial standing, his family connections, the claims of particular persons upon his bounty, the situation of the beneficiaries, social and pecuniary, the situation and the mental condition of the testator, the nature and contents of the will itself, and all the circumstances under which it was executed, may be considered as facts from which fraud and undue influence may be inferred, or by which they may be disproved."

The execution of wills prior to the one being contested, concerning which no undue influence is shown, disposing of the property substantially as in the last will, is relevant and material in showing the absence of undue influence, while a sudden and complete change of the disposition of property would demand explanation, unless the change is made in favor of heirs. The fact that some of the children are disinherited and others favored, and the distribution appears unnatural or unreasonable, raises no presumption of undue influence; but such fact may, when taken with other facts, show undue influence. The financial condition of the legatees may be shown as circumstances bearing upon the question as to whether the will was the product of a mind not unduly influenced by beneficiaries.

If a beneficiary, for the purpose of influencing the mind of the testator, fabricates false and slanderous charges against one who ordinarily would have been a recipient of favors under a will, and such slanders have induced the making of a will by which such person is cut off from any benefits, such slander would constitute important evidence bearing upon the question of fraud and undue influence; but the mere fact of the existence of unreasonable prejudice, or erroneous convictions as to the unworthiness of the contestants, is no evidence of coercion or fraud. Dislike towards one who has a natural claim upon the bounty of the testator, to form a basis for a refusal to probate a will, must have been fanned into life or nursed and fostered by a beneficiary in order to form the basis for fraud or undue influence. A will must be procured wholly by lying or false representations, made by a beneficiary with the intention of procuring the execution of a will, in order to invalidate it for such fraud.

The evidence in this case fails to establish "undue influence," as above defined. It is true that it was shown that Alexander Simon, Sr., entertained animosity and prejudice against Mrs. Middleton, Mrs. Martin, and Cain Simon for many years, and, while it may have ebbed and flowed at times during the years, it was the product and outcome of what the testator considered the outrageous conduct of his daughters and the profligate life of his son. Some grounds were shown for the existence of the anger of the testator towards the disinherited children; but, if it had been utterly unfounded, it would not invalidate the will, unless it was engendered by the appellants and used by them to utterly destroy the volition of the testator as to the disposition of his property. Patterson v. Lamb, 21 Tex. Civ. App. 512, 52 S. W. 98; Barry v. Graciette (Tex. Civ. App.) 71 S. W. 309. It was his property, accumulated by thrift and enterprise during a long life, and he had the absolute right to dispose of it as he saw fit. No doubt, the daughters were poor and needed a portion of the property, and, looking at it from a moral standpoint, it may be that he should not have disregarded the ties of blood and nature; but he had the right legally to give his property to a stranger, or for charitable purposes, if he was capable mentally of making a will and made it in response to his own desire and volition.

There is nothing to indicate that the fraud of appellants, or either of them, induced the making of the will. The testator knew of the marriage of Mrs. Middleton to a gambler, not of her religious faith, over the protest and in utter disregard of the wishes of her parents. He knew that she did not speak to them even while living with her two children in his house. He knew of the conduct of Mrs. Martin, knew that she did not speak to her parents, and did not treat them with any consideration. He knew of the disreputable conduct of his son Cain, and had the right to cut him off on account of his profligacy. If at times in the long years the testator seemed to relent towards his undutiful children, his detestation of their conduct was voluntarily expressed through his wills for years before his death, and he was consistent in his desire to prevent his property from going into the hands of those children. He was a man of strong will and purpose, and acted upon his own convictions and prejudices; but they were his, formed in his own mind, and acted upon through his own strong determination. They were not shown to have been builded upon the fraud and deception of any of the proponents of the will. Cain was the only witness who testified as to one of the proponents telling his father about the conduct of Mrs. Middleton, and he was impeached.

Not only was the burden on appellees to establish undue influence, but it devolved upon them to show that it was operating upon the mind of the testator at the time that he executed the will of 1904, and that the execution of the will was the outcome of an influence amounting to moral coercion, which destroyed his volition and caused him to make a disposition of his property which he did not wish to make. Not one single influence was shown to be operating upon the mind of the testator in this case at the time that he executed the will sought to be probated, except one arising from the convictions of a strong and determined mind. He simply placed in crystalized form the determination lasting through years and founded on facts within his own knowledge and under his own observation. It doubtless is true that he ought to have exercised charity and forbearance towards his erring and undutiful offspring, and it may be that he has acted in a cruel and unnatural manner towards them; but he cannot be called to answer for these things before the tribunal of the district court or of this court. He had the right of disposition of his property after his death, and, when he had made such disposition in the exercise of his intelligent volition, his action cannot be set aside on grounds of morality and the duties he owed to his own off-spring.

The contents of the letter written by the testator to Mrs. Middleton, two years after the execution of the will, should not have been permitted in evidence. The reasons that the testator gave for cutting off an allowance that he had been making to Mrs....