Whitney v. Murrie

• Decision Date: 08 May 1924
• Docket Number: (No. 1621.)
• Parties: WHITNEY et al. v. MURRIE.
• Court: Texas Court of Appeals

264 S.W. 270

WHITNEY et al. v. MURRIE.

(No. 1621.)

Court of Civil Appeals of Texas. El Paso.

May 8, 1924.

Rehearing Denied June 19, 1924.

Appeal from District Court, Shackelford County; W. R. Ely, Judge.

Petition by Robert Gregg Murrie to set aside probate of and annul will of M. A. Gregg, deceased, opposed by Florence J. Whitney and others. Judgment for contestant, and contestees appeal. Reversed and remanded.

Chas. E. Coombes and M. S. Long, both of Abilene, Andrews & Andrews, of Stamford, and A. A. Clarke, of Albany, for appellants.

R. L. Stennis, of Dallas, W. J. Cunningham, of Abilene, and J. A. King, of Albany, for appellee.

WALTHALL, J.

On June 9, 1920, an instrument purporting to be the last will and testament of M. A. Gregg, deceased, bearing date the 26th day of July, 1919, and in which E. E. Whitney was named as independent executor, was admitted to probate in the county court of Shackelford county. After the will had been duly probated, and said executor had qualified as such, and returned an inventory, appraisement, and list of claims of said estate, on to wit, the 14th day of February, 1921, appellee, Robert Gregg Murrie, filed in said probate court his petition to set aside the probate of said will and to annul said will, citing appellants, Mrs. Florence Whitney and her husband, E. E. Whitney, Margaret E. Churchill, and her husband, S. J. Churchill, Ernestine E. Vail and her husband, K. B. Vail, Frank Eugene Whitney, Gregg Earl Whitney, and E. E. Whitney, as independent executor under said will, to answer said petition. Charles E. Combs was duly appointed guardian ad litem for Gregg Earl Whitney, a minor without a guardian. The trial in the county court resulted in favor of the contestant, Robert Gregg Murrie, and a decree and order entered setting aside said will and the order of the court probating same, and adjudging that appellee recover his costs, from which decree and order defendants, as contestees of said will, duly prosecuted an appeal to the district court of Shackelford county. The case was there tried with a jury and submitted upon special issues, resulting in a verdict and judgment in favor of contestant, appellee here, from which judgment contestees under the will, appellants here, prosecute this appeal.

On the two issues submitted to the jury under the court's general charge the jury found, first, that the testatrix, Mrs. M. A. Gregg, was of unsound mind on July 26, 1918, when she was to have executed the will in controversy, and, second, that the alleged will of Mrs. M. A. Gregg, of date July 26, 1918, was procured by the undue influence of Mrs. Florence J. Whitney and the other beneficiaries under the will, or some one or more of them.

Some of the undisputed facts as to the relationship of the appellee and appellants to the testatrix, Mrs. M. A. Gregg, and to each other, as alleged and shown by the record, might be stated here.

Appellee, Dr. Robert Gregg Murrie, plaintiff below, is the son and only surviving child of Mrs. Maggie E. Murrie, deceased, who was a daughter of Mrs. M. A. Gregg, deceased, and Josiah Gregg, deceased. Appellant Mrs. Florence J. Whitney is the daughter of Mrs. M. A. Gregg and Josiah Gregg, and appellants Mrs. Margaret E. Churchill, Mrs. Ernestine E. Vail, Frank Eugene Whitney, and Gregg Earl Whitney are the children of Mrs. Florence J. Whitney and her husband, E. E. Whitney.

Dr. Robert Gregg Murrie and Mrs. Florence J. Whitney are the heirs at law and the only heirs at law of Mrs. M. A. Gregg and Josiah Gregg.

Appellee, plaintiff below, after alleging certain matters not submitted as issues to the jury, and not necessary to state here, alleged in substance and effect that, if Mrs. M. A. Gregg signed said instrument on the 26th day of July, 1918, or attempted to do so, she did not at that time possess sufficient mental capacity to recall the objects of her bounty and to associate the property or interests to be given with the particular beneficiary or beneficiaries, and to know what she desired to do with the property and to understand the transaction involved by the terms of said will, and was not then and there of sound and disposing mind and memory; and that Mrs. M. A. Gregg was influenced to execute said will different from what she desired by the undue influence of Mrs. Florence J. Whitney. To which petition appellants answered by general denial and special denials as to the exercise by any of them of any undue influence, and, further, that on said 26th day of July, 1918, Mrs. M. A. Gregg was of sound mind, and of her own volition executed said will. Mrs. M. A. Gregg died on or about the 16th day of May, 1920.

Opinion.

The 37 assignments of error and the propositions thereunder relate to the sufficiency of the evidence to carry the case to the jury, the form in which the issues are submitted, the giving and refusing of charges, the admission and rejection of testimony, and the conduct of the court on the trial of the case.

Appellants, under several propositions and in different ways, question the sufficiency of the evidence to raise either the issue of mental capacity of the testatrix to make a will or the issue of procuring the will by undue influence of Mrs. Florence J. Whitney and the other beneficiaries under the will, or any of them. The evidence, covering more than 300 pages of the record, is too voluminous to quote here. We have very carefully read and noted the statements of each of the witnesses who testified in the case, and the opportunity of each to know and observe the condition of mind whether sound or unsound, of the testatrix, Mrs. M. A. Gregg, on the 26th day of July, 1918, at the time of the making of the will; and the opportunity of each of the witnesses to know whether the will of Mrs. M. A. Gregg was procured by the undue influence of the beneficiaries under the will, or any one or more of them, and all the facts and circumstances disclosed by the record in connection with the evidence of the witnesses and the issues involved. The court very properly placed the burden of proof upon appellee, the contestant, upon both of the issues. In our opinion the evidence is wholly insufficient to sustain the finding of the jury on the issue of undue influence of any of the beneficiaries in procuring the will. The issue of undue influence should not have been submitted.

Appellee alleged that at the time of the making of the will Mrs. M. A. Gregg was, suffering under an insane delusion induced by misrepresentations of Mrs. Florence J. Whitney and her said children that valuable advancements had been made to, or valuable provisions had been made for him, plaintiff, by Mrs. M. A. Gregg, or Josiah Gregg, or both; and that such advancements or provisions were of such value as to make it necessary for her, Mrs. M. A. Gregg, to leave all of her estate to her other grandchildren, appellants herein, and nothing to plaintiff in order to make a just and equitable distribution of her estate as between plaintiff and her other grandchildren. Plaintiff referred to the fourth paragraph of said will as evidence of such belief or delusion in the mind of Mrs. M. A. Gregg at the time of the making of said will.

The fourth paragraph of the will declares, in substance, that it is not because of a want of love for appellee that no bequest is made to him, but because of her belief that he has heretofore been provided for more liberally than she can provide for her other grandchildren, and that her present disposition of her estate would be but a recognition of her love and affection for her other grandchildren as well, and no want of love for appellee.

L. C. Huskey, brother of Mrs. M. A. Gregg, testified that Mrs. Gregg talked to him quite often about the disposition she wanted to make of her property; that —

"Those conversations were not just a short time before her death. They were farther back. * * * She said she wanted it equally divided between Dr. Murrie and Mrs. Whitney, her other daughter. * * * The last time she made such a statement to me was a year or maybe a year and one-half before her death. * * * I have noticed or observed Mrs. Whitney and Mrs. Gregg together in their respective homes and out at many places. * * * If they got to talking about the will Mrs. Whitney would object to it. Mrs. Whitney would object to the will, and she thought that Dr. Murrie should not have an equal share of it; that he had already been amply provided for. Relative to Mrs. Whitney's manner toward her mother, she seemed to be kind of disappointed, and she would sometimes argue with her mother. She would seem to be kinda angry with her mother. She seemed to be in a state of anger toward her mother during those conversations, * * * as though she thought she had not divided the property right and thought it should be divided different; that she should not think as much of him as of her and her children, that is, in the division of the property. * * * During those conversations Mrs. Gregg seemed to be very affectionate toward her, Mrs. Whitney. She seemed to be bothered about things. She would very often give up and not argue so much. Sometimes she would cry."

Without quoting further the verbiage of the testimony of the witness he stated that he was associated with his sister from 1898 to 1920; did not know at that time that Mrs. Gregg had made a will, and did not know until it came into court; Mrs. Gregg said nothing about having made a will, Mrs. Whitney in those conversations would criticize her father's (Josiah Gregg's) will; thought Dr. Murrie had been well provided for; did not think the property should be equally divided. Josiah Gregg's will gave his property to his wife, Mrs. M. A. Gregg, during her life, under certain conditions which we need not state here, further than to remark that Mrs. Gregg took a life estate under the will determinable on the conditions expressed, none of which are here involved, then to be "equally divided share and...