Simpson v. Neely

• Decision Date: 17 March 1949
• Docket Number: No. 2827.,2827.
• Citation: 221 S.W.2d 303
• Parties: SIMPSON et vir. v. NEELY.
• Court: Texas Court of Appeals

221 S.W.2d 303

SIMPSON et vir. v. NEELY.

No. 2827.

Court of Civil Appeals of Texas. Waco.

March 17, 1949.

Rehearing Denied June 9, 1949.

Appeal from District Court, McLennan County; D. W. Bartlett, Judge.

Proceeding by Mattie Neely to probate will of W. E. Neely, deceased, opposed by Estelle Neely Simpson and husband. From judgment admitting will to probate, the contestants appeal.

Reversed and rendered.

Jerome Sneed, Jr., Louis Scott Wilkerson, Austin, for appellants.

Fitzpatrick & Dunnam, Waco, for appellee.

LESTER, Chief Justice.

This appeal involves the contest of an application to have admitted to probate the will of W. E. Neely, deceased. The proponent, Miss Mattie Neely, a sister of the deceased, was named as the sole beneficiary under the terms of said will. The deceased executed his will on January 13, 1930, and the next day he delivered to the proponent a copy thereof. He died on May 4, 1943. The deceased left surviving him his widow, mother, a brother, three sisters and several nephews and nieces, who were living, at the time of the trial in the district court, except his mother, who died in February, 1946, but only the surviving widow filed a contest to the application to probate said will, alleging that she was the surviving widow of the deceased and denying that said instrument was a valid will, alleging that the same had been revoked by the deceased during his lifetime. She further pleaded estoppel, res judicata, etc.

The proponent filed her supplemental petition, in which she denied: (1) that the contestant and the deceased were ever husband and wife, in that at the time of the alleged marriage the deceased was of unsound mind and did not possess sufficient mental capacity to enter into the marriage relation with the contestant, and by reason of such, said alleged marriage was rendered wholly void and of no force and effect, and that the contestant had no interest in said estate and no right to contest the probate of said will. (2) That if it should develop on the trial that the deceased removed or obliterated his name from said will, or caused the same to be done in his presence, that at the time thereof said deceased was of unsound mind and did not possess sufficient mental capacity to understand his alleged physical acts in so doing, and that therefore said alleged removal of deceased's name from said will was of no force and effect and did not in any manner impair the validity of said will. (3) Denied that the will was ever revoked, destroyed, cancelled or obliterated by the deceased, or that the deceased caused the same to be done in his presence; that if it should be found that said instrument was mutilated, it was done without the knowledge, acquiescence or consent of said deceased and was done by persons other than deceased and whose name or names are by the proponent unknown.

The county court admitted the will to probate. The contestant appealed to the district court and the case was tried de novo upon the same pleadings as were filed in the county court. Upon the conclusion of the evidence the contestant filed her motion for an instructed verdict, which was overruled, and the court submitted the case upon six special issues. The jury were not required to answer Issues Nos. 2, 3 and 4 if they answered Issue No. 1 in the affirmative, which they did, and made the following findings: To Special Issue No. 1 the jury found that some person other than the deceased cut the signatures from said will. To No. 5 the jury found that at the time of the marriage ceremony between the deceased and the contestant the deceased was of unsound mind. To No. 6 the jury answered that prior to August 3, 1945, the proponent did not agree that if contestant would waive her right to be appointed administratrix of the estate of the deceased the proponent would not try to secure probate of the instrument in question as the will of the deceased.

The contestant filed a motion for judgment non obstante veredicto, which the court overruled. Based upon the answers of the jury the court entered judgment admitting the instrument to probate as the last will and testament of the deceased, and the judgment contained the following provision: "It is further ordered, adjudged and decreed that the marriage entered into by the deceased and the contestant on July 4, 1942, be and the same is hereby cancelled, dissolved, annulled, held for naught and declared void and of no force or effect." Contestant's motion for a new trial being overruled, she has perfected her appeal.

Contestant's first point is that the trial court erred in including in its judgment an adjudication purporting to avoid the marriage between deceased and contestant. Proponent's first contention is that a marriage of a person of unsound mind is wholly void and of no force and effect, and that same can be attacked collaterally by anyone in any court or place where the question is raised; and second, that the attack made upon the marriage included a direct attack as well as collateral, and since the jury found that the deceased was of unsound mind at the time he married, the court did not err in annulling said marriage.

The evidence reveals that the deceased was sixty-eight years of age when he married in 1942 and the contestant was sixty-four when the case was tried below. Deceased had been married once prior thereto and she had been married twice. They had known each other for many years and had corresponded with each other for several years before said marriage and he would visit the contestant every two or three months at her home in Austin, Texas. On July 3, 1942, a marriage license was issued by the County Clerk of Travis county authorizing them to be married, and on July 4, 1942, the marriage ceremony was performed in the First Presbyterian Church at Austin by the pastor of said church in the presence of witnesses and the license was returned and recorded as required by law on the 8th day of July, 1942. Two or three days after their wedding ceremony they went to Moody and lived in the home of his mother, where the deceased was living at the time of the marriage and where he had been living for several years prior thereto, and they continued to live there as their home as husband and wife until his death on May 4, 1943. The contestant performed her household duties such as cooking, keeping house, etc., and conducted herself in a manner in keeping with the relationship of husband and wife. They were generally considered and recognized as husband and wife and no question was raised as to the validity of said marriage until in August, 1945, more than two years after the death of the deceased. The evidence further discloses that the deceased was examined in November, 1941, and found to be suffering from syphilis in the third stage.

The first question is, is the marriage of an insane person void or only voidable? If absolutely void and of no effect, and if not subject to ratification during the lifetime of the insane, then the attack made upon it by the proponent was proper and the court below committed no error in this respect.

Under the common law of England the marriage of an insane person was void ab initio on the theory that a person of unsound mind is unable to consent to such marriage. If we are bound by that rule in Texas, then under the findings of the jury in this case that the deceased was of unsound mind when the marriage ceremony was performed, the proponent is within her rights in maintaining that said marriage is of no legal force or effect because the same is an absolute nullity, and the contestant would have no interest in the subject matter and therefore no right to contest the probate of said instrument. Abrams v. Ross, Tex.Com.App., 250 S.W. 1019 et seq; Moore v. Stark, 118 Tex. 565, 17 S.W.2d 1937.

In support of proponent's contention that the marriage is void ab initio, she cites: Articles 1, 3315, 4604, 4604c and 4628, Revised Civil Statutes of Texas, Vernon's Ann.Civ.St. arts. 1, 3315, 4604, 4604c, 4628; 38 C.J. p. 1285, Sec. 14; 55 C.J.S., Marriage, § 12; three Texas cases and several cases from foreign jurisdictions. The Texas cases are as follows:

Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, L.R.A.1915E, 1, Ann.Cas.1915C, 1011, in which insanity was not involved but a common law marriage was, and the question was whether a mere agreement between a man and a woman to become husband and wife without cohabitation constituted a common law marriage. The court held that the mutual consent of the parties is necessary to the creation of the marriage relation, the contract being a civil contract in that a church ordinance or rite is not required. Speaking of the common law of England the court said: "The act of Congress of the Republic of Texas of 1840 (Laws 1840, p. 3; Rev.St.1895, Art. 3258) [which is now Article 1 of Vernon's Ann.Civ.Stats.], providing that the common law of England, so far as not inconsistent with the Constitution and laws of the State, shall be the rule of decision unless altered or repealed, means the common law declared by the courts of the several states, and not the common law in force in England in 1840," and by the adoption of the same it "was intended to effectuate the provisions of the common law so far as not inconsistent with the conditions and circumstances of the people of the state."

Holland v. Riggs, 53 Tex.Civ.App. 367, 116 S.W. 167, 171 (writ refused). Mary Belle Riggs was an infirm, insane woman. Holland was a man about thirty-nine or forty years old. Mary Belle Riggs came into court by next friend to have a deed set aside that Holland had procured from her by his alleged fraud and without consideration, and on the ground that she was a non compos mentis. Just a few days before the trial was had Holland married her and the jury found that she was insane at the time the deed was executed and at the time of the marriage. Holland contested her right to maintain the suit against him...