Walston v. Mabry
| Citation | 225 S.W.2d 1014 |
| Decision Date | 01 December 1949 |
| Docket Number | No. 6478,6478 |
| Parties | WALSTON et al. v. MABRY et al. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Pat Beadle, Clarksville, for appellants.
Leighton Cornett, Paris, for appellees.
The judgment of the District Court of Red River County, after a jury verdict, nullified the will of Mrs. Penny Mabry, and this appeal is by the proponents of the will. The trial court submitted but one issue to the jury, in response to which the jury found that at the time Mrs. Mabry executed the will she did not have the testamentary capacity to do so. From a judgment of the county court upholding the will and its own judgment previously rendered in probate thereof, the appellees removed the case to the district court by writ of certiorari where it was tried with the result indicated.
The appellants are Clifton Walston, independent executor under the will, and his wife, Nell Ruth Walston, both of whom were the only beneficiaries under the will. Mrs. Walston is the daughter of Mrs. Willie Belle Burgess, and Mrs. Burgess is a daughter of the testatrix. Mrs. Burgess was also made an original defendant but she filed a disclaimer and was dismissed from the suit.
Appellants present six points of error but they are all grouped for consideration and appellants have briefed and submitted them as being predicated 'upon one proposition of law, viz., the lack of competent evidence to support the finding of the jury, and the judgment of the court based thereon.'
The will was executed and dated April 29, 1946. At that time Mrs. Mabry was about 78 years old. She died April 15, 1947, in Red River County, where her estate was located. In 1940, she fell and received a hip injury from which she never recovered. From that time until her death she was confined to her bed or to a wheelchair. For at least three years before her death she was in a frail, emaciated condition of health. For a period of time variously stated from a few months to two or three years prior to her death she had 'bedsores.' She had no control over her bodily excretions, and this failure of functions had existed for periods variously stated from a few months to seven or eight years. Several witnesses testified positively that at the time she made the will she was of unsound mind. Some witnesses detailed facts from which it appears that she could not carry on a conversation; that she did not know her children or close neighbors; that on one occasion she called one of her sons a dog; that on another occasion she called her children varmints, and called a potato a watermelon. Witness Alexander, a neighbor-and from all that appears he was a disinterested witness-testified that at a date which he fixes at about two years before her death, he saw her at her home, and that he believed 'she was a very sick woman,' that
The foregoing are only a few of the facts detailed. Appellants argue that the testimony as to unsoundness of her mind consists of opinions of witnesses not based on sufficient facts. Objections to the admissibility of such opinions were made and overruled by the trial court. No points of error are presented for review of such rulings. So long as such nonexpert opinions were based on facts detailed by the witnesses who expressed them, the trial court probably admitted them on the theory that the objections went more to the weight of such opinions than to their admissibility. The value of such testimony was for the jury.
The statement of facts contain 282 pages. It would extend this opinion to an unreasonable length if we should undertake to set forth any considerable part of the testimony further than what has already been done. The issue of her mental capacity at the time she executed the will was sharply contested, and is conflicting. Upon the basis of the testimony presented, reasonable minds might differ on the conclusions to be drawn. It was within the province of the jury to pass upon all the facts and circumstances in evidence, and upon the conduct and attitude of witnesses who were before them. They were...
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Crow v. City of San Antonio, 12967
...would have been proper before the cause was submitted to the jury. Hicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846; Walston v. Mabry, Tex.Civ.App., 225 S.W.2d 1014; Rineheart v. Tomerlin, Tex.Civ.App., 227 S.W.2d 876; Broussard v. Burton Const. & Shipbuilding Co., Tex.Civ.App., 265 S.W.2d T......
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