Taylor v. Taylor, 14480

• Decision Date: 02 May 1952
• Docket Number: No. 14480,14480
• Citation: 248 S.W.2d 820
• Parties: TAYLOR et al. v. TAYLOR,
• Court: Texas Court of Appeals

Page 820

248 S.W.2d 820

TAYLOR et al. v. TAYLOR,

No. 14480.

Court of Civil Appeals of Texas, Dallas.

May 2, 1952.

Ross Huffmaster and Jess Rickman, both of Kaufman, for appellants.

Monroe Ashworth and A. G. Henry, both of Kaufman, for appellee.

BOND, Chief Justice.

This is a will contest. Agnes Taylor, surviving wife of testator John Marion Taylor, filed application in the Probate Court of Kaufman County, Texas, to probate the will of her husband. Robert Taylor and others (children of the deceased testator by a former marriage) contested the application on the grounds: (1) Mental incapacity of the testator; (2) undue influence exerted by Agnes Taylor over the testator as to cause him to execute the will; and (3) the will offered for probate had been revoked by subsequent will in form of deed executed by the testator. On hearing, the County Court probated the will; the contestants appealed to the District Court of Kaufman County.

In the District Court, over the contestants' exceptions and motion for peremptory instruction, the cause was submitted to a jury on the single submitted issue as to whether the testator 'did not have testamentary capacity to execute the will.' And on an affirmative finding, the court entered judgment admitting the will to probate.

To the action of the court in submitting the issue as to mental capacity and failure to submit special issues as requested on undue influence and revocation of the will and to the findings of the trial court in its judgment, (1) that the will of John Marion Taylor was executed with all the formalities and solemnities required by law to make it a valid will and that it had not been revoked; and (2) that the contestants failed to establish by competent evidence that 'the testator was under or subject to undue influence in the making of such will,' the contestants duly excepted, and with other assignments hereinafter considered assigned respective errors and duly perfected appeal.

In briefs appellants make seven points of error, none of which challenge the insufficiency of the evidence as to the issue of mental capacity of the testator to make the will, and no point raised as to the 'negative' form in which the issue of mental capacity was submitted. The burden being upon the appellee proponent in offering the will for probate to establish affirmatively that the purported will was executed with all the prerequisites, formalities and solemnities required by law and that the testator was of sound mind at the time of executing the will. The evidence as to the soundness of mind of the testator was sharply controverted, and as the cause must be reversed and remanded, on another trial the issue of the mental capacity of the testator should be so framed as to call for an 'affirmative' finding rather than 'negative' by the jury, as to avoid error in submission.

The uncontroverted evidence established the following facts which have bearing on the issue of 'undue influence': John Marion Taylor, deceased, was an old man, 75 or 80 years of age; could neither read nor write and was neither strong mentally nor physically; had been twice married and had two sets of children. The contestants (four in number) are children of the first marriage; Agnes Taylor, proponent of the will, was his second wife and to this marriage the residue beneficiaries named in his will are their children. In 1945 John Marion Taylor and his wife Agnes Taylor executed a joint will (the will in controversy) in which each willed to the other in similar and effective terms all property which the one predeceasing shall own and possess at the time of his or her death, to sell and dispose of and to make use and enjoy and to have absolute control of for and during the life of the survivor and at death the residue vest in their last four children in fee simple, to wit: Marion Agnes Taylor, J. B. Taylor, Opal Taylor and Lonnie Homer Taylor, share and share alike forever.

On July 12, 1949 John Marion Taylor died, leaving surviving his said wife Agnes Taylor and his two sets of children. His estate consisted principally of about 142 acres of land valued at approximately $5,000 and some personal property.

There is evidence in the record that Mr. Taylor in 1939 had a surgical operation which caused him to become feeble in mind and body, unable to attend to his business; absent minded, unable to get about, depending upon his wife in the transaction of his business affairs. A. Mr. Crum (nephew of Mr. Taylor) testified that prior to the operation his uncle was a very healthy man, worked hard, took care of his farm, but after his operation he was 'in pretty bad shape,'-that he considered him in 'terribly bad shape'; that he was feeble, at times suffered so badly that he could not recognize him (Crum); he hardly had a well moment, suffering all the time; couldn't attend to business and that his wife Agnes acted as his guardian and when he didn't know what he was doing, she was supposed to do it. A Mr. John Taylor (not related to the parties) gave evidence that he had known the deceased about 50 years and up to a few years before his death he was a very active man, took good care of his business and transacted all of his business affairs; but for the past few years his wife transacted his business for him; that they would come into his place of business and his wife gave orders for what they wanted. W. T. Dykes testified that after Mr. Taylor's operation in 1939, Mr. Taylor got very feeble; told him at one time that if it wasn't for 'my wife and family getting around and tending to business, I couldn't make it. I am getting too old to get around to attend to business. I couldn't possibly attend to it if it wasn't for having help from my wife and family.' A Mr. I. D. Buie testified that about 10 years ago Agnes Taylor called to Mr. Taylor and made him help do some work laid out for him to do; at that time he observed that Mr. Taylor had become 'kind of down and out,' weaker after his operation, and that Agnes attended to his business. A Mr. Harris gave pretty much the same testimony as did Mr. Buie, and so did a Mr. Ed O'Brian. Mr. O'Brian further stated that in talking to Mr. Taylor, 'he would change the subject from one thing to another, kind of childish like, something like that.' A Mr. Travis Prater testified that he had known Mr. Taylor 30 or 35 years; had conversations with him at different times and places, and when he talked with him he would look up and say, 'I ought to know your name. What's your name?' that he would tell him, and he would...