Moore v. Boothe , 39 Tex. Civ. App. 339 ( 1905 )

The briefs of counsel in this case failed to reach the hands of the reporter.

GILL, Associate Justice.

Mrs. M. A. C. Moore offered the will of her deceased mother, Mrs. Lucy Boothe, for probate in the Probate Court of DeWitt County. The proponent was joined by others interested as devisees. W. A. Boothe, and others joining with' him, contested the probate of the will on two grounds: First, because the testatrix was of unsound mind at the date of its execution; and, second, that the will, as made, was the result of undue influence exercised upon the testatrix by those interested in its execution.

The Probate Court, after hearing the evidence, admitted the will to probate. The cause was appealed to the District Court, where the effort to probate the codicil was abandoned. A jury trial was had in the District Court, which resulted in a verdict against proponents, and judgment was entered accordingly. From that judgment proponents have appealed.

It is unnecessary to set out the will, as its terms have no bearing upon the questions which control the disposition of this appeal.

The form of the assignments, and the manner of their presentation, are objected to by appellees, and as to several of the assignments the objections are meritorious. But, as the assignment we have decided to consider requires a reversal of the judgment, these objections will not be discussed.

The assignment which we allow complains of the submission of the issue of undue influence, the objection being that the issue is not presented by the evidence. The evidence adduced by proponents was prima facie sufficient to justify the probate of the will. The evidence adduced by contestants presented the issue of want of mental capacity, and that issue was submitted to the jury. The court also submitted the issue of undue influence, and the jury were instructed, in effect, that if they found a lack of sufficient mental capacity in the testatrix, or that the will, as made, was the result of undue influence, they should exclude the will from probate. The verdict was general. It is not necessary either to set out or discuss the evidence. There is nothing in the record which rises to the dignity of evidence tending to establish undue influence, and the court erred in. submitting the issue. The verdict being general, this error requires a reversal of the judgment.

Appellees seek to sustain the judgment on the ground that the application for probate is bad on general demurrer. The point was not made in either of the lower courts, but appellees insist it is fundamental, and can, therefore, be made at any point in the progress of the cause. It is well settled that, where a judgment is rendered in response to pleadings bad on general demurrer, the error is fundamental, and the judgment will be reversed for that reason though the point was not made in the lower court. But we know of no case in which an adverse judgment has been sustained on such a ground alone. The right to amend can not thus be cut off.

The objection to the application, now urged for the first time, is, that it fails to aver that the testatrix was of sound mind at the date of the execution of the will. It is contended that, as the burden is on the proponent, and the statute requires the proof of mental soundness to be explicitly made, the elementary rules of pleading require such an allegation. Article 1884 of the Revised Statutes prescribes what such an application shall contain, and the allegation of mental soundness is not among the things prescribed. The application in question follows the statute.

Article 1904 prescribes that the following facts shall be proved in order to authorize the probate of a will: 1. That the testator, at the time of executing of the will, was twenty-one years of age, or married, was of sound mind, and that he is dead. 2. That the court has jurisdiction of the estate. 3. That citation has been duly served and returned. 4. That the will was executed under the formalities and circumstances required by law. 5. That the will has not been revoked.

The contention that the statute was not intended to suspend the general rule of pleading, to the effect that what is necessary to be proved must also be pleaded, is not without force. The contention is sustained in Martinez v. De Martinez (19 Texas Civ. App., 661, 48 S. W. Rep., 532), and we are not disposed to hold otherwise, but the point is not necessarily up for decision, so we dismiss it with the suggestion that an amendment of the application will eliminate the question.

The matters complained of, growing out of the introduction of evidence, are not likely to arise upon another trial, so we do not discuss them.

For the error indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.