White v. White

• Decision Date: 23 June 1943
• Docket Number: No. 8103.,8103.
• Citation: 172 S.W.2d 295
• Parties: WHITE et al. v. WHITE et al.
• Court: Texas Supreme Court

172 S.W.2d 295

WHITE et al. v. WHITE et al.

No. 8103.

Supreme Court of Texas.

June 23, 1943.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Frank White and others against Mrs. Callie White and another to cancel a deed. A judgment for defendants was affirmed by the Court of Civil Appeals, 168 S.W.2d 324, and plaintiffs bring error.

Judgments reversed and cause remanded for new trial.

J. F. Carl, of Edinburg, for petitioners.

S. N. McWhorter, of Weslaco, for respondents.

BREWSTER, Commissioner.

This is a suit by Frank White et al. to cancel a deed executed by J. D. White, father of Frank White and grandfather of the other plaintiffs, conveying certain lands in Hidalgo County to respondents, Mrs. Callie White and Della White, wife and daughter, respectively, of the grantor. At the conclusion of plaintiffs' testimony, the trial court instructed a verdict for the defendants. Judgment upon that verdict was affirmed by the Court of Civil Appeals at San Antonio. 168 S.W.2d 324.

The deed in question was executed on June 12, 1941, and J. D. White died seventeen days dater. The petition alleged that for months prior to his death White was afflicted with heart trouble, bladder trouble and a dropsical condition of his body and limbs which so weakened his body and mind that on June 12, 1941, he was "unable to transact, or to know and understand, a business transaction and to know and understand the nature and extent of a business transaction, and was in fact in such a condition physically and mentally that he could not, and did not, know and understand the nature and extent of any business transaction." We have to decide whether the courts below were correct in holding that the evidence presented on that allegation was not such as to raise an issue for the jury's determination.

To summarize the testimony most favorable to the plaintiffs' claim of lack of mental capacity on the part of J. D. White it appears from the record that he was seventy-five years old when he executed the deed; that he had been sick a few days short of nine months when he died; that he suffered "general heart trouble" and asthma and developed the dropsical condition some days before the deed was executed; that the dropsy resulted in a painful swelling of his stomach, limbs, head and face; that he was in great discomfort and groaned when he was moved. Although they did not testify, two doctors were called to see Mr. White on the very day the deed was executed, and one thing they did for him was to drain his bladder. One witness, Mrs. White's stepbrother, testified that he saw Mr. White on June 10, 1941; that the latter's feet and legs were swollen "in a strut" and that he showed that he was suffering and "acted as though he was smothering"; that "he would have wavers" in his conversation and "did not follow a subject all of the time plumb through"; that his conversation did not impress witness as being normal "because he was suffering too much, he was in too much misery." A practicing physician of fifty years' experience, but who never saw Mr. White, testified as to the effect of bodily ailments on the mind. He said that...