Turner v. Turner

• Decision Date: 19 November 1964
• Docket Number: No. 79,79
• Parties: Mrs. Elizabeth TURNER, Appellant, v. L. J. TURNER et al., Appellees.
• Court: Texas Court of Appeals

Page 195

384 S.W.2d 195

Mrs. Elizabeth TURNER, Appellant, v. L. J. TURNER et al., Appellees.

No. 79.

Court of Civil Appeals of Texas, Tyler.

Nov. 19, 1964.

E. C. Wellborn, Henderson, C. F. Wellborn, Gladewater, for appellant.

Goldon Wellborn and Rex Houston, Henderson, for appellees.

SELLERS, Justice.

This is a will contest in which the will of Arthur Turner, deceased, is sought to be probated. The instrument dated July 6, 1955, was originally offered for probate in the County Court of Rusk County, Texas, as, by the Proponent, Elizabeth Turner, the surviving wife or Arthur Turner. Contestants, L. J. Turner, Mozelle Turner Baker, Marie Turner Wayland and Annie Turner Tucker, the surviving children of Arthur Turner by a previous marriage contested the probate of the instrument alleging, in addition to a general and special denial, undue influence on the part of Mrs. Elizabeth Turner. They specially denied that the instrument offered for probate was the will of Arthur Turner.

The instrument offered for probate was dated July 6, 1955. Under its terms decedent bequeathed all of his property to his wife, Elizabeth Turner, reciting therein that he was not unmindful of his four children, but that he had already given to each of them a just share of his life's earnings.

After a trial in the County Court judgment was entered admitting the will to probate. Contestants duly perfected their appeal to the District Court of Rusk County and by amended petition and in addition to a general and special denial alleged undue influence on the part of the Proponent, and further alleged that the instrument offered for probate 'was revoked by a later will which was duly executed by Arthur Tuner, deceased, according to the solemnities of law.'

The case was tried before a jury and in response to the two Special Issues submitted by the court, ¹ the jury found (1) that the will was procured by undue influence on the part of Elizabeth Turner, and (2) also found that decedent, Arthur Turner, had executed a subsequent will dated January 24, 1962, intending to revoke the former will. Based upon the verdict, the trial court entered judgment denying probate of the instrument to which the Proponent, Elizabeth Turner, duly perfected this appeal.

In substance, Proponent contends that the judgment should be reversed because (1) there is no evidence, or at least insufficient evidence, to sustain the jury's verdict; (2) the alleged errors of the court in admitting certain testimony over Proponent's objection; (3) error by the court in failing to require one of Proponent's witnesses be brought to court, and (4) because of the alleged error of the court in admitting testimony concerning revocation of the will without proper pleadings.

Proponent's 1st, 2nd and 4th Points assert that there is no evidence, or at least insufficient evidence, to support the jury's findings of undue influence and revocation. These points will require a brief review of the record.

Before discussing the testimony, it should be pointed out that prior to trial Contestant, L. J. Turner, conveyed to his three sisters all of the right, title and interest which he could have or might have in the estate of his father, Arthur Turner, by inheritance or otherwise, and disclaimed any interest or right to his estate from any source. He then moved to dismissed as a party to the suit. The court granted the motionand dismissed L. J. Turner from the case.

Contestants produced testimony showing that Elizabeth Turner and Arthur Turner were married in 1947 and although occasionally separated lived together until his death of September 19, 1962; that his marriage to Elizabeth Turner was his fourth marriage subsequent to his divorce from Mattie Lou Turner, the mother of Contestants; that despite his domestic difficulties Arthur Turner had always remained kind and affectionate to his children and grandchildren; that although the will recited gifts to his children, no substantial gifts had been made, but he had at various times made loans and advances to all of his children. The testimony further revealed that Mr. Turner had suffered several heart attacks throughout the years commencing in 1947 and had otherwise been in poor health since that time. Deceased's son, L. J. Turner, testified as to numerous conversations with his father after his marriage to Elizabeth Turner in which his father often expressed his displeasure with Elizabeth Turner's attempts to influence him in the disposition and control of his property. According to the testimony of both L. J. Turner and Jack Glen Crawford, a grandson, Arthur Turner called them to his home on January 24, 1962, and while there he stated to them that he had requested them to come to his home during Mrs. Turner's absence because he desired to explain to them, in the absence of his wife, how he wanted his estate handled. He then explained to his son in the presence of Crawford that he had theretofore on that date signed a new will which had been prepared by Mr. H. H. Wellborn, an attorney. He stated that Wellborn and Crawford had been to his home that morning and that he had signed the will in the presence of Wellborn and Crawford as witnesses. He said that he had revoked the previous will and that he wanted the will that he had signed that morning to be his last will. He said he wanted to leave all of his property to his children; that his only reason for making the previous will in 1955 was because his wife, Elizabeth Turner, had threatened to leave him unless he willed her all of his property. He said, 'she would kill me if she knew that I was changing my will * * *.' He then took the will from a nightstand beside the bed and asked his son to read it so he could hear it, which he did. According to the testimony of both of these witnesses, the will recited that Arthur Turner was above the age of 21 years; was of sound mind and that he was revoking all prior wills signed by him and that all of his estate was to go to his four children. They also testified that he then told them that he had never been satisfied with first will because he felt like he had been forced to sign it to keep her from leaving him, further stating that the 1955 will was not in his possession and that he therefore wanted to be sure that they knew he had revoked it and replaced it with the subsequent will and requested them to see that his wishes were carried out.

L. J. Turner further testified that on this occasion his father told him that within a short time after he and Elizabeth were married 'she started hounding him day and night for a will, wanted him to make her a will leaving everything to her, said it got to the point where he couldn't get any rest without her hounding him day and night and he made her a will willing her his stuff, and said at the time he done it he knew it wasn't right but that was the only was he could get any peace was to let her have her way.'

He further testified that prior to his father's death he told him that he had placed the second will in an old trunk in a utility room behind his home; that immediately after his father's funeral he went to the Turner home and as he arrived he saw Mrs. Turner coming out of the utility room; that he went to the trunk and found that it had been opened and some of the old clothing therein had been disarranged; that he made a search for the will but was never able to find same; that he then asked Elizabeth Turner for the will and other papers that were in the trunk but she denied any knowledge of a will in the trunk; and she advised him that the other papers were in the house but that he was not going to get them.

According to the testimony of E. C. Wellborn, attorney for the Proponent, Arthur Turner came to his office in 1955 and requested him to prepare his will. He was alone at the time. Both he and the other subscribing witness, M. H. Barton, testified he was also alone when he later returned to Mr. Wellborn's office for the purpose of executing the will. Mr. Wellborn also testified that he had visited with Mr. Turner on three occasions after he executed the will, the last of which was in September, 1962, and that on each occasion Mr. Turner inquired as to whether his will would stand up and that he assured him that it would; that although he and his brother, H. H. Wellborn, occupied adjoining law offices, he knew nothing of his brother having prepared a second will; that H. H. Wellborn died shortly before the trial of this cause.

Mrs. Elizabeth Turner testified that the first time she saw the will or had any knowledge of its existence was in September, 1957.

We will consider first the 'no evidence' points relating to the question of revocation.

This being a proceeding to probate a will in which a contest has been filed, the inquiry in broad terms is whether the will sought to be probated is the testator's will or whether it is not. Such an inquiry embraces the question of whether the will offered for probate had subsequently been revoked. Langehenning v. Hohmann, 139 Tex. 452, 163 S.W.2d 402.

Upon the question of revocation Proponent had the burden of proving that the will had not been revoked. This burden is discharged and the will entitled to probate when its due execution is proved, in the absence of circumstances which cast suspicion on it, or in the absence of evidence of revocation. There is a presumption of continuity of status which constitutes a prima facie case against revocation. If, however, the Contestants put in sufficient evidence to rebut the presumption, then the burden of going forward with the evidence shifts back to the Proponent of the will and he must, by a preponerance of the evidence, discharge his burden of proof that the will was not revoked. McElroy v. Phink, 97 Tex. 147, 76 S.W. 753; Brackenridge v. Roberts, 114 Tex. 418,...