Thomason v. Gwinn
| Decision Date | 27 November 1944 |
| Docket Number | No. 5644.,5644. |
| Citation | 184 S.W.2d 542 |
| Parties | THOMASON et al. v. GWINN. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hall County; A. S. Moss, Judge.
Proceeding by I. W. Thomason and others against Mrs. F. M. Gwinn, contesting the alleged will of Lillian E. Thomason, deceased. The trial court instructed the jury to return a verdict that the instrument was entitled to probate, and I. W. Thomason and others, contestants, appeal. On motion for rehearing.
Reversed and remanded for new trial.
Williams & Bell, of Childress, and Sam J. Hamilton, of Memphis, for appellants.
Mahan & Broughton, of Childress, for appellee.
On October 17, 1944, opinion was rendered herein reversing the judgment of the trial court and remanding the cause for a new trial. The appellee has presented her motion for a rehearing. While we adhere to the disposition originally made of the appeal, we deem it necessary to withdraw the opinion heretofore written and substitute in lieu thereof the opinion which follows.
This action originated in the County Court of Hall County and was brought by the appellee, Mrs. F. M. Gwinn, to probate an instrument alleged to be the last will and testament of her daughter, Lillian E. Thomason, deceased. The appellants unsuccessfully contested the application in the county court and judgment was there entered admitting the instrument to probate. An appeal was taken to the District Court of Hall County, where a trial before a jury resulted in the court instructing the jury to return a verdict that the instrument was entitled to probate as the last will of Lillian E. Thomason, and judgment was entered admitting the instrument to probate. The parties will be here designated as in the original proceeding, the appellee being the proponent, and the appellants the contestants.
The proponent offered the instrument for probate as the holographic will of her daughter. The instrument is in pencil writing on a single sheet of ruled pen tablet paper. Under proper order of the court below, the original instrument has been transmitted to this Court and is before us with the record. There are fourteen lines of writing and the wording and punctuation of the instrument and of each line are as follows:
Mrs F M Gwinn
has paid $285 00
on the land estate home
and Seth Thomason
has paid $65 00
exam title 10 00
putting deeds on
record and tax 3 00
and when this is paid
the place belongs to mama
in case anything
happens to me I want mama
to have half of our intire
estate, Lillian
It will be noted there is no punctuation in the instrument except the comma which appears in the last line. By way of explanation of the instrument, the wording "land estate home" was shown to be a particular piece of property originally part of an estate belonging to R. D. Land and Ellen C. Land. F. M. Gwinn was the receiver for this Land Estate, and as receiver conveyed this particular piece of property, by instrument dated April 27, 1942, to his daughter, Lillian E. Thomason, the wife of Seth Thomason, for a consideration of $350 cash. It is undisputed that the property was conveyed to Mrs. Thomason to be held by her for her mother, Mrs. F. M. Gwinn, the true owner. F. M. Gwinn died August 2, 1942. His daughter, Lillian E. Thomason, died October 7, 1942. On February 28, 1920, Lillian E. Thomason and her husband, S. E. Thomason, also known as Seth Thomason, joined each other in the execution of a will, by the terms of which the survivor of the two, as the sole beneficiary, was to receive all of the property, both real and personal, of the one who should first die, and the survivor was named as independent executor or executrix of the will. Following the death of Lillian E. Thomason, her surviving husband, Seth Thomason, offered the instrument of February 28, 1920, for probate as her last will and it was duly admitted to probate in the County Court of Hall County on December 14, 1942, apparently without objection by any party. Seth Thomason died August 31, 1943. On February 11, 1944, the instrument now in question was offered by Mrs. F. M. Gwinn for probate as the holographic will of Lillian E. Thomason. While the instrument is not dated, the circumstances show that it must have been prepared subsequent to the 1920 will. In accounting for the finding of the document, Mrs. Nell Reid and Mrs. Susie Wagner, sisters of Lillian E. Thomason, testified that the personal effects of Lillian E. Thomason had, some time after her death in 1942, been taken from the Thomason home to the home of Mrs. F. M. Gwinn and there placed in a trunk. These effects included a purse which was found in the top drawer of a highboy belonging to Mrs. Thomason and which, witnesses stated, was neither opened nor the contents examined at the time. During the Christmas season of 1943, when the daughters had gathered at their mother's home, it was agreed that Mrs. Thomason's personal effects should be divided among them and, in carrying out this arrangement, the contents of the trunk were examined and the instrument in question was found in the purse which had originally come from Mrs. Thomason's highboy.
The contestants are the heirs of Seth Thomason, deceased, who as has been stated, was the surviving husband of Lillian E. Thomason and the sole beneficiary under her will of February 28, 1920. We shall sometimes refer to the instrument here offered for probate as "the questioned will" but shall not, by the use of such term, be expressing an opinion on the merits of the issue as to whether it is a will.
The contestants resisted the probate of the instrument primarily upon the premises that it is vague, indefinite, and uncertain and is not, in fact, a testamentary instrument entitled to probate and there was not, in fact, any testamentary intention on the part of Lillian E. Thomason at the time she wrote the instrument, if she did; that her previous will is clear, certain, and unambiguous, and that the instrument offered for probate contains no clause of revocation and does not operate as a revocation of the prior will and that the instrument is not wholly in the handwriting of the said Lillian E. Thomason as alleged by the proponent.
The contestants attack the judgment of the court below on the following points: (1) The court should have instructed a verdict for the contestants; (2) the court should not have instructed a verdict for the proponent; (3) the court should have submitted to the jury the issue of testamentary intention; (4) the court should have submitted to the jury the issue of intention on the part of the testatrix to revoke the former will; (5) the court should have submitted to the jury the issue as to whether or not the instrument in question is wholly in the handwriting of Lillian E. Thomason; and (6) the court should not have sustained the proponent's exception to that part of the contestants' pleadings which averred that the instant proceedings constitute a collateral attack on the judgment of the County Court of Hall County admitting the 1920 will to probate.
We are of the opinion that the trial court committed error in not submitting to the jury the fact issue as to whether or not the instrument in question is wholly in the handwriting of Lillian E. Thomason. The burden of proof to establish that the questioned will is wholly in the handwriting of the testatrix was upon the proponent. Hogan v. Stoepler, Tex.Civ.App., 82 S.W. 2d 1000. On this point the proponent offered the testimony of her two daughters, Mrs. Nell Reid and Mrs. Susie Wagner, sisters of the deceased, who testified that they were familiar with the handwriting of their sister through having seen her write a number of times and through having corresponded with her and that the questioned will is wholly in her handwriting. Neither of these witnesses attempted to say that she had seen the testatrix write the instrument in question. In fact, they both testified that the first time they ever heard about the instrument or knew it was in existence was when it was discovered in the purse of testatrix at Christmas in 1943, more than a year after her death. There was some cross-examination of these witnesses with reference to the form of the figure "3" in the instrument and about the appearance of the word "intire" in the instrument, but there was no testimony by any witness that the instrument is not wholly in the handwriting of the testatrix. The proponent urges the proposition that the two witnesses by whom the handwriting was identified were not parties to the suit, were not impeached, and were not contradicted and, therefore, the issue was established by uncontradicted testimony and the contestants were not entitled to have it submitted to the jury.
The testimony of the two sisters to the effect that the questioned will is wholly in the handwriting of the testatrix is opinion evidence. Neither of them saw her write the instrument. Their identification of her handwriting was necessarily based upon a comparison between the writing in question and writing which they had seen and which they knew to be hers. Joffre v. Mynatt, Tex.Civ.App., 240 S.W. 319.
As a general rule, a jury, in determining facts, is not bound by the opinions of witnesses. Simmonds v. St. Louis B. & M. R. Co., 127 Tex. 23, 91 S.W.2d 332; Guinn v. Coates, Tex.Civ.App., 67 S.W.2d 621; Bridwell v. Bernard, Tex.Civ.App., 159 S.W.2d 981; Carter v. Myers, Tex.Civ.App., 149 S.W.2d 248.
We quote from Simmonds v. St. Louis B. & M. R. Co., supra [127 Tex. 23, 91 S.W.2d 335]: "From the authorities above discussed and quoted, we conclude that juries in weighing opinion testimony and reaching their verdicts, when all or most of the evidence on the particular issue is of such character, may, and, as Justice Field said, must to act intelligently, give effect to the...
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