Taylor v. Taylor, 12809

• Decision Date: 25 May 1955
• Docket Number: No. 12809,12809
• Citation: 281 S.W.2d 232
• Parties: William P. TAYLOR, Jr., Appellant, v. Isabelle TAYLOR, Appellee.
• Court: Texas Court of Appeals

Page 232

281 S.W.2d 232

William P. TAYLOR, Jr., Appellant, v. Isabelle TAYLOR, Appellee.

No. 12809.

Court of Civil Appeals of Texas, San Antonio.

May 25, 1955.

Rehearing Denied June 22, 1955.

Dibrell, Gardner, Dotson & Graham, Sam J. Dotson, San Antonio, C. Vernon Thompson, Chicago, Ill., for appellant.

Baskin, Casseb & Casseb, Paul E. Casseb, John M. Gilliland, Frank J. Baskin, San Antonio, for appellee.

NORVELL, Justice.

This is an appeal from a judgment of the district court ordering a certain instrument dated August 3, 1953, admitted to probate as the last will and testament of William P. Taylor, deceased. The appellee is the widow of the testator, while the appellant is a son by a former wife. The appellee presented the will for probate in the County Court, where her application was granted over the protest of appellant. An appeal was taken to the District Court where the case was submitted to the jury upon two special issues,-the jury finding that the instrument of August 3, 1953, was wholly in the handwriting of William P. Taylor and that such instrument was written by Taylor as a result of undue influence exerted upon him by the appellee, Isabelle Taylor. Upon motion, the district judge set aside the jury's finding upon the issue of undue influence, as being without support in the evidence, and ordered the tendered testamentary declaration admitted to probate as the last will and testament of William P. Taylor, deceased. Rule 301, Texas Rules of Civil Procedure.

Appellant submits the case here upon fifty points of error. However, the primary contentions seem to be that the will involved was based upon a contractual arrangement entered into between William P. Taylor and Isabelle Taylor, and as it was ineffective as to Isabelle Taylor, it was likewise ineffective as to William P. Taylor; that under the evidence, the issue of testamentary capacity should have been submitted to the jury, and that the court erred in disregarding the jury's answer to the undue influence issue. The jury's finding that the instrument offered for probate was wholly written by William P. Taylor has ample support in the evidence and no reversible error is shown with reference to the trial judge's ruling upon the admission of evidence bearing upon this issue.

The instrument found by the jury to be wholly in the handwriting of William P. Taylor was as follows:

'August 3rd 1953

'Wm P. Taylor

and

Isabelle Taylor

'(1) Being of Sound Minds, and disposed to make all future provisions possible; and about to embark on possibly hazardous activites, we make the following Will.

'(2) If either of us survive, all of our estates, properties, interests, businesses, investments and any residues, become the property of the survivor.

'(3) Either survivor will protect all of his or her interests to the utmost, in case of any litigation.

'(4) Any beneficiary of this will, instituting any litigation is automatically cut off; with the will hereof $1.00 in lieu of any possible claims.

'(5) The Estate, constituting: The Business; the Bank Accounts, the Investments, the House, and any other Values; the money is cash, the prospects of future earnings; and all else, is included.

'(6) To My Son; who has never contributed anything but sadness; lack of consideration of my condition, and who has actually contributed to my general misery, I will $1.00. If any more is ever claimed, every effort will be expended to thwart this.

'(7) My mother (Wm. P. Taylor speaking) If both of us my wife and I should be deceased, and my mother survive; all of the estate will be placed in a Trust Fund, paying her whatever her needs may be. But none of it shall revert to my son, hiw wife, or my grandson.

'(8) After her death, 70% of the Trust shall be expended upon a building fund, and promotion of the Mayan Order, 30% shall be divided as follows:-Chas. Hefner 70%, of this Machesmay 20%, Gilbert Jackson and Cora Johnson 5% each. The Home shall become a Library and Nuseum of Mayanry, a nucleus of the building program.

'Signed: Wm. P. Taylor

'Isabelle Taylor

'Witnesses: ________; ________'

Although two spaces were provided for witnesses, none signed and the declaration was consequently ineffective as a testamentary disposition on the part of Isabelle Taylor. Articles 8283 and 8284, Vernon's Ann.Tex.Stats. However, although inoperative as to the wife, it was nevertheless effective as to William P. Taylor. Garland v. Meyer, Tex.Civ.App., 169 S.W.2d 531; Curtis v. Aycock, Tex.Civ.App., 179 S.W.2d 843; City of Corpus Christi v. Coleman, Tex.Civ.App., 262 S.W.2d 790; Dufner v. Haynen, Tex.Civ.App., 263 S.W.2d 662; 57 Tex.Jur. 464, Wills, § 687.

The pertinent facts relating to the contentions of testamentary capacity and undue influence may be briefly summarized as follows:

Appellant, William P. Taylor, Jr., was born in 1918, and reared by his paternal grandparents, Harry A. Taylor and Ida M. Taylor. In 1935, William P. Taylor was married a second time, his wife being the appellee, Isabelle Taylor. They accumulated considerable community property, consisting of a publishing enterprise devoted primarily to study of the ancient Mayan civilization of Mexico. In 1941, Harry A. Taylor having died, Mrs. Ida M. Taylor and William P. Taylor, Jr., moved to San Antonio and lived with William P. Taylor and Isabelle Taylor. In January of 1942 William P. Taylor, Jr., went to Fort Monmouth, New Jersey, and enlisted in the Signal Corps of the United States Army. In August, 1943, he married Mary Constance Biermann in the State of New Jersey and shortly thereafter went overseas and saw action in the South Pacific theatre of operations. One son, William P. Taylor III, was born to this marriage. It appears that in 1944 William P. Taylor, Jr., and his wife and son visited his father and stepmother in San Antonio. It appears that Mary Constance Taylor had intended to stay in San Antonio until the war was over, but instead returned to the east. There was testimony that this change in plans was occasioned by objections made by Isabelle Taylor. In November, 1945, William P. Taylor, Jr., was discharged from the Army and thereafter went to Chicago where he secured a position as a radio engineer and established a home for his wife and child. In February, 1946, William P. Taylor and the appellee went to Chicago. They saw the son and there seems to have been some discussion about the son's returning to San Antonio and entering his father's business. However, nothing came of this and the elder Taylor returned to San Antonio and was stricken with paralysis on May 5, 1946. He was confined to a hospital for a period of four months and remained paralyzed from his waist down until the time of his death. Shortly after the execution of the disputed will, apparently the next day, August 4, 1953, William P. Taylor and his wife left San Antonio and went to Los Angeles, California. On August 13, 1953, Taylor became seriously ill of a digestive complaint and a doctor was called to attend him. He was transferred to the Good Samaritan Hospital in Los Angeles, where he died the following day. The cause of death was diagnosed as acute pancreatitis of approximately seven days' duration.

It appears that although William P. Taylor remained partially paralyzed for something over seven years, he nevertheless, with his wife's assistance, continued to look after his publishing business. Numerous witnesses testified as to his being sound mentally. Even after he was stricken with pancreatitis, the attending physician testified that his mental faculties were unimpaired. In our opinion there was no issue of lack of testamentary capacity to go to the jury. It is true that the burden of establishing mental soundness is upon the proponent of the will, but where, as here, the proponent has made out a prima facia case of testamentary...