Whatley v. McKanna

• Decision Date: 09 January 1948
• Docket Number: No. 2614.,2614.
• Citation: 207 S.W.2d 645
• Parties: WHATLEY v. McKANNA et al.
• Court: Texas Court of Appeals

207 S.W.2d 645

WHATLEY v. McKANNA et al.

No. 2614.

Court of Civil Appeals of Texas. Eastland.

January 9, 1948.

Rehearing Denied January 30, 1948.

Appeal from District Court, Coleman County; A. O. Newman, Judge.

Will contest by Edith Whatley McKanna and others, opposed by Mrs. Sue C. Whatley, proponent. Judgment for contestants, and proponent appeals.

Affirmed.

Dibrell, South & Snodgrass, of Coleman, for appellant.

W. B. Chauncey, of Wichita Falls, and Rob O'Hair, of Coleman, for appellees.

GRAY, Justice.

This is a suit appealed from the District Court of Coleman County, Texas, involving a contest of the will of Dan T. Whatley, deceased. The appellant, Mrs. Sue C. Whatley, is his surviving wife and principal legatee. Mrs. Edith Whatley McKanna and her four sisters, all daughters of said deceased by a former marriage, are the contestants and appellees here. The deceased died in Coleman County on July 16, 1946. The instrument was dated July 5, 1944. Application for probate was filed in the County Court of said County on July 23, 1946. The will was admitted to probate by the County Court from which contestants appealed to the District Court. This trial was before a jury, and the court submitted two, and only two issues, viz.:

"Special Issue No. 1:

"Do you find from a preponderance of the evidence that at the time Dan T. Whatley executed the Will introduced in evidence he had `Testamentary Capacity', as that term is defined in the charge? Answer `Yes' or `No'."

The jury answered "No."

"Special Issue No. 2:

"Do you find from a preponderance of the evidence that at the time Dan T. Whatley executed the Will introduced in evidence he was acting under the undue influence of Mrs. Sue C. Whatley? Answer `Yes' or `No'."

The jury answered "Yes."

The court thereupon rendered judgment denying probate of the will, and after denial of Motion for New Trial, proponent (appellant) perfected her appeal to this court.

Appellant has ten points, all of which are countered by appellees. The case has been especially well briefed by both sides, which has been of great assistance to this court in disposing of the case. While all the points have been urged with vigor, and stoutly resisted by appellees, appellant especially stresses Point One which complains of the alleged error of the trial court in excluding Direct Interrogatory No. 8, and the answer thereto, of Mrs. Grady Duling, the only living subscribing witness to the will, Mrs. Duling having testified by deposition. Direct Interrogatory No. 8, was as follows: "At the time he signed said will was Dan T. Whatley of sound mind?" The answer of the witness to said interrogatory was: "Yes, at the time Dan T. Whatley signed the said will he was of sound mind." In none of the direct interrogatories was the said witness asked as to her previous acquaintance and contacts with the deceased, and her opportunity for observing him. But in answer to cross interrogatories, it was elicited from the said witness that she had not seen the deceased before or since she witnessed said will; that she had no conversation with the deceased at said time, and that she could remember nothing that transpired at said time, except that the attorney dictated said will to her, she being said attorney's secretary; that she typed said will, which was then signed by the testator in the presence of herself and said attorney, and that at the request of the testator, she and said attorney signed the same as subscribing witnesses in the presence of the testator and of each other. A more detailed statement of her evidence will be made later in this opinion. The objection made to said interrogatory and answer was that the witness had wholly failed to qualify to testify as to the soundness of mind of the deceased. Appellant contended in the trial court and contends here that a subscribing witness is not required to qualify as in the case of non-subscribing witnesses, but that said witness was entitled to testify as to said testator's soundness of mind solely by reason of being such subscribing witness.

Art. 3348, Revised Civil Statutes, Vernon's Ann.Civ.St. art. 3348, enumerates the facts which must be proved to admit a will to probate, and one of such facts is that the testator must have been of sound mind. To establish a legal will, concurrence of all statutory requirements must be proved. Dannenbauer v. Messerer's Estate, Tex.Civ.App., 62 S.W.2d 235. There exists in Texas no presumption of sanity of a testator. But this will having been admitted to probate by the County Court, the burden was then on contestants to prove mental unsoundness of the testator.

Due to the importance of the question now under consideration, we deem it advisable to set out in detail the cross interrogatories propounded to the witness, Mrs. Grady Duling, and her answers thereto.

"1—If you have answered direct interrogatories that you witnessed the will in question, then is it not a fact that you have no independent recollection of this transaction other than that the will was dictated to you by Mr. Cox, that you transcribed same, and signed same as a witness? A. — Yes, it is a fact that I have no independent recollection of this transaction other than that the will was dictated to me by Mr. Cox, that I transcribed same, and signed same as a witness.

"2 — Didn't you say to W. B. Chauncey, attorney for the contestants, in Temple, Texas, at your hotel, and in the presence of Mrs. Reynolds and Mrs. Rendon, that you did not remember this transaction except that you did remember writing the will and signing same as a witness? A. — Yes, I told W. B. Chauncey, attorney for the contestants, in Temple, Texas, at the Hawn Hotel, and in the presence of Mrs. Reynolds and Mrs. Rendon, that I did not remember this transaction except that I did remember writing the will and signing the same as a witness.

"3 — Isn't it a fact that on that occasion on the night of July 29, 1946, and in your hotel, that you stated to W. B. Chauncey in the presence of the two ladies that you did not remember anything about the appearance of Dan T. Whatley at the time the will was signed. A. — Yes, it is a fact that on that occasion on or about the night of July 29, 1946, in the Hawn Hotel, that I stated to W. B. Chauncey in the presence of the two ladies that I did not remember anything about the appearance of Dan T. Whatley at the time the will was signed.

"4 — Didn't you tell us on that occasion that you had no conversation whatever with Dan T. Whatley at the time the will was signed? A. — I do not recall that upon the occasion in question I made any statement with reference to whether I had conversation with Dan T. Whatley at the time the will was signed, nor do I recall that I was asked whether I had a conversation with him at such time.

"5 — Isn't it a fact that you said to W. B. Chauncey at that time that if you could see the will of Dan T. Whatley you might be reminded of some things that happened there in Mr. Cox's office which might refresh your memory, and isn't it a fact that at that time I showed you a certified copy of the will and you still stated that you had no recollection of what took place, except that you wrote the will as dictated by Mr. Cox, and that you signed same as a witness? A. — Yes, it is a fact that I stated to W. B. Chauncey at that time that if I could see the will of Dan T. Whatley I might be reminded of some things that happened there in Mr. Cox's office which might refresh my memory, and it is a fact that at that time he showed me a certified copy of the will, and I still stated that I had no recollection of what took place, except that I wrote the will as dictated by Mr. Cox, and that I signed same as a witness.

"6 — If you say in your answer to the above questions that such were not the facts, then please state fully what you said to W. B. Chauncey in the presence of said two ladies on that occasion relative to your remembrance of what took place. A. — I have answered yes to the above cross-interrogatories with the exception of No. 4. If Mr. Chauncey asked me whether I had any conversation with Mr. Whatley at the time the will was signed, I do not remember this, but if I had any conversation with Mr. Whatley when he signed the will, I do not remember it at all, and feel sure that I did not have any conversation with him.

"7 — Had you seen Dan T. Whatley prior to the signing of the will? If so, how many times and where. A. — No, so far as I know, I had not seen Dan T. Whatley prior to the signing of the will.

"8 — Did you see Dan T. Whatley after the will in question was signed? If so, how many times, the dates, and where he was at the time? A. — No, so far as I know, I did not see Dan T. Whatley after the will in question was signed."

The competency of this witness to testify as to the mental condition of the testator was challenged by contestants, and unless she was competent to give such testimony solely by reason of being a subscribing witness to the will, her competency was a question for the court, subject to review for abuse of discretion. 19 Tex.Jur. page 157, Sec. 103. If the witness admits that he knows nothing about the matter under inquiry, lack of qualification is clearly shown and the opinion of the witness is wholly inadmissible. 19 Tex.Jur. page 148, Sec. 98. From the answers of this witness to the cross interrogatories, it will be noted that the witness had never seen Dan T. Whatley before the signing of the will; that she had not seen him since; that she had no conversation with him at the time; had no recollection as to what transpired, except that she transcribed the will from dictation by the attorney; that she signed it as a subscribing witness at the request of the testator, after he had signed it in her presence and in the presence of said attorney. She could recall no other fact or circumstance in connection with the signing. Did the trial judge abuse his discretion in refusing to admit in...