Schelb v. Sparenberg , 1937 Tex. App. LEXIS 1357 ( 1937 )

BROWN, Justice.

Defendants in error, Charles and Russell Sparenberg, grandsons of H. Sparenberg and Johanna Sparenberg, after the death of their grandmother (their grandfather having died many years before), brought suit against their aunt, Mrs. Lizzie Schelb and her husband, who are plaintiffs in error, to establish and recover an undivided one-half interest in all property belonging to the estate of their said grandparents and also to set aside and deny the right to the probate of a certain will purported to have been executed by Mrs. Johanna Sparen-berg; and the two causes, being lodged in the same district court, were consolidated and tried-together.

We' will designate the parties as appellants and appellees for convenience.

Trial was had to a jury and nine special issues were submitted for determination.

The first issue inquired whether or not it was the intention of H. Sparenberg, in the making of his will, to provide that whatever remained of the entire community estate at the death of- his wife should descend to their two children, George Sparen-berg (the father of appellees, who died prior to the time Johanna Sparenberg died) and Mrs. Lizzie Schelb, or their heirs, share and share alike. The jury found that such was his intention.

Issue No. 2 inquired whether or not Johanna Sparenberg elected to take under the terms of her husband's will. The jury found that she did.

Issue No. 3 required the jury to find whether or not checks and certificates of deposit, made payable to Mrs. Johanna Sparenberg, which were endorsed in blank by Mrs. Sparenberg between the time when she came to Fort Worth to live with Mrs'. Schelb (in February 1929) and the time of her demise, in November, 1933, were received by Mrs. Schelb for the use and benefit of Mrs. Sparenberg. The jury answered this issue in the affirmative.

Issue No. 4 required the jury to find whether or not the checks and certificates of deposit inquired about were obtained by Mrs. Schelb from Mrs. Sparenberg through undue influence exerted over her by Mr. and Mrs. Schelb. The jury answered this issue in the affirmative.

Issue No. 5 required the jury to find whether or not Mrs. Sparenberg was caused to execute the purported will by reason of undue influence exerted over her by the Schelbs. The jury answered this issue in the affirmative.

Issue No. 6 required the jury to find whether or not a certain certificate of deposit in the sum of $1,000 was delivered to Mrs. Schelb by Mrs. Sparenberg as a loan. The jury answered, “Yes.”

To issue No. 7 the jury answered that at the time Mrs. Sparenberg signed the purported will she did not know the provisions and contents of the same.

To issue No. 8 the jury found that the checks which were made payable to Mrs. Sparenberg and delivered to Mrs. Schelb, between February, 1929, and November, 1933, were not gifts. And a similar finding was made to issue No. 9, which inquired about the certificates of deposit in question.

Upon this verdict, judgment was rendered for appellees against appellants, denying the will to probate and for title to and possession of one-half of the estate involved.

Being aggrieved at the judgment, Mr. and Mrs. Schelb have appealed.

We find 42 assignments of error in appellant’s brief and 38 propositions urged in support of same.

The first 21 assignments of error complain of the following matters:

(1) A statement by the trial court with respect to depositions taken in behalf of both appellants -and appellees.

(2) Complaint with reference to the cross-examination on the part of appellees of appellants’ witness, Mrs.. McCain, and the introduction of evidence to impeach such witness.

(3) Complaint of the refusal on the part of the trial court to permit appellant Mrs. Schelb, on cross-examination, to testify to transactions had with her deceased mother, and the refusal of the trial court to permit such witness to testify to such transactions on -direct examination.

(4) Complaint of the admission of certain papers in which had been wrapped Christmas presents sent by appellees to their grandmother, which were returned unclaimed and refused, and having such stamped on same.

(5) Complaint of admission in evidence of the testimony of S. H. Morrison, attorney for H. Sparenberg, concerning the instructions given to him by Mr. Sparen-berg when he prepared Mr. Sparenberg’s will.

A motion for a new trial was filed in the district court and none of the matters complained of in the first 21 assignments of error were incorporated in, or alluded to in, the motion for new trial.

Objection is made on the part of appellees to a consideration of these first 21 assignments of error, and we believe the objection is well taken.

An examination of the opinion in the case of Stillman v. Hirsch (Tex.Civ.App.) 84 S.W.2d 501, wherein a writ of error was granted by the Supreme Court and an exhaustive and able opinion written by Mr. Justice Sharp affirming the cause, will disclose that old rule 71a was not stripped of its potency by the enactment of any of the recent statutes which have caused so much controversy. This old rule,' before it was amended by the Supreme Court in the spring of 1937, required that a motion for new trial should be filed in all cases where the parties desired to appeal or sue out a writ of error, unless the error complained of is fundamental, except in such cases as the statute does not require a motion for hew trial. Stillman v. Hirsch, 99 S.W.2d 270.

None of the matters complained of in the first 21 assignments of error, which were not alluded to or raised in the motion for new trial in the lower court, presents fundamental error.

We do not believe that they should be considered under the holding in the authority above cited. But, if we are required to consider same, we do not find any merit in them, for the following reasons:

The complaint concerning the statement or instruction given by the trial court to the jury with reference to the depositions of witnesses, which had been taken by both appellants and appellees, shows that the trial court simply said to the jury: “This deposition is sworn testimony of a witness. He is testifying under oath when he gives his deposition.” We fail to see how this could be construed as a comment on the weight of the evidence, and such is the complaint made. Any layman, serving as a juror, would of necessity know that a deposition is the sworn testimony of a witness and that he is testifying under oath. How appellants could have been injured by this statement of the trial court, even if the court had limited this statement or instruction to the depositions taken by ap-pellees, we are unable to see, but the record discloses that the statement or instruction referred to all depositions taken by all parties, and, if any benefit or advantage flowed to appellees by such instruction, it likewise inured to the benefit of appellants.

The complaint with reference to the cross-examination of appellants’ witness, Mrs. McCain, discloses that such witness was a neighbor and close friend of appellants and was in sympathy with the defenses and contentions made by the appellants and she was testifying in their behalf concerning the relatipnship that existed between the late Mrs. Sparenberg and appellants, and the substance of her testimony was that the treatment of 'Mrs. Sparen-berg by appellants was practically perfect and that they did everything within their power to make her comfortable and happy.

On cross-examination appellees sought to show from this witness, and did show, that appellants would not permit the appellees, her own grandsons for whom she had expressed and shown great love and affection, to see her or communicate with her, and appellees sought to impeach, and did impeach, such witness, establishing the fact that appellants would not permit her grandsons to see Mrs. Sparenberg, and that all letters mailed by them to Mrs. Sparenberg and all packages containing Christmas presents sent to her were intercepted by appellants and returned to the senders.

The many complaints made with respect to the exclusion by the trial court of testimony given by Mrs. Schelb in answer to questions propounded to her on cross-examination disclose that perfectly legitimate questions were propounded to this appel-. lant on cross-examination, and that in answering same she voluntarily testified to transactions had with the deceased and that appellants sought on direct examination to, introduce such testimony before the court and jury.

The record discloses that appellees .never waived their rights under the provisions of article 3716, Rev.Civ.Statutes; they 'never called Mrs. Schelb as a witness to testify to any transaction had with her deceased mother.

The situation presented to us and our ruling thereon is very much like, and supported by, the following authorities: Himes v. Himes, 55 S.W.2d 181, opinion by the late Chief Justice Conner of this court; Huggins v. Myers, 30 S.W.2d 565, opinion by Chief Justice Dunklin of this court; Austin v. Rupe (Tex.Civ.App.) 141 S.W. 547; Salvini v. Salvini (Tex.Civ.App.) 2 S.W.2d 963; American Exchange Nat. Bank v. Keeley (Tex.Civ.App.) 39 S.W.2d 929; Tharpe v. Schmall (Tex.Civ.App.) 44 S.W. 2d 505; and Dannenbauer v. Messerer’s Estate (Tex.Civ.App.) 4 S.W.2d 620, affirmed Compton v. Dannebauer, 120 Tex. 14, 35 S.W.2d 682, 79 A.L.R. 1488.

The complaint with reference to the introduction in evidence of the wrappers which contained the unclaimed and refused Christmas presents sent to Mrs. Sparen-berg by appellees has no merit, because such evidence was merely cumulative and was corroborative of testimony given by appellants’ witness, Mrs. McCain, on cross-examination.

The complaint with reference to the testimony of Attorney Morrison, concerning the instructions given to him when he drew Mr. Sparenberg’s will, is without merit, because a reading of the will discloses that, if same is in anywise ambiguous, the intention of the testator must be ascertained, and who is capable of testifying to such intention better than the attorney who drew the will and with whom Mr. Sparenberg discussed his intentions when the will was drawn by him? If there is no ambiguity in the will, then the intention of the party, as carried out by Mrs. Sparenberg after the death of her husband, is made plain, and such testimony complained about is harmless.

We do not find where assignments of error Nos. 12, 13, 24, 32, and 33 have either been supported by propositions or briefed by appellants, and we take it that these are not urged on the appeal.

The twenty-second assignment of error asserts that there is no evidence to support the finding on issue No. 1, and the twenty-third that the finding by the jury on such issue is against the preponderance of the evidence. We have searched the record and do not find where appellants made any objection to the charge of the court as prepared and delivered to the jury; nor do we find where any request was made by appellants for a peremptory instruction in their behalf, and it is not contended that appellants were entitled to a peremptory instruction in either or both of the consolidated cases.

Article 2185, Rev.Civ.Statutes, expressly provides that all objections to the charge of the court must be timely made and presented to the court before the charge is given to the jury, and that, unless this is done, all objections thereto are waived. We are of opinion that appellants cannot here be heard to raise for the first time the objection to the giving of issue No. 1, on the theory that the evidence does not support it. King v. Roberts et al., 125 Tex. 623, 84 S.W.2d 718; Port City Lumber Co. v. Markell (Tex.Civ.App.) 9 S.W.2d 449, writ dismissed; Fidelity & Guaranty Fire Corp. v. Ormand (Tex.Civ.App.) 62 S.W.2d 675, writ dismissed; Saenger v. Dallas Ry. & Terminal Co. (Tex.Civ.App.) 67 S.W.2d 351, writ refused; Bell et al. v. Mulkey (Tex.Civ.App.) 7 S.W.2d 115, affirmed (Tex.Com.App.) 16 S.W.2d 287; Ley v. Patton (Tex.Civ.App.) 81 S.W.2d 1087, writ dismissed.

In National Life & Accident Ins. Co. v. Bennett (Tex.Civ.App.) 73 S.W.2d 676, it is held that error in the charge of the court, even though it be fundamental, must. be called to the court’s attention, and several cases are cited to support this holding, including Gestean v. Bishop (Tex.Civ.App.) 180 S.W. 302, 181 S.W. 696.

We believe that Mr. Justice Hawkins, speaking for the Supreme Court in Electric Express & Baggage Co. v. Ablon, 110 Tex. 235, 218 S.W. 1030, together with the concurring opinion by Chief Justice Phillips, lays down the rule that all objections to the charge of the court are waived unless they are made in accordance with the provisions of article 2185, Rev.Civ.Statutes, and that the litigant who makes no objection to the submission of a charge, or of an issue, places himself in the position of having consented thereto, and the charge thereunder becomes his charge, and that under such circumstances a litigant cannot complain of the submission of the charge or the issue, but has the right to assign as error and make complaint that the evidence is insufficient to support the finding of the jury.

It would seem a rule of reason that, where a litigant makes no objection to the submission of an issue, and therefore accepts the charge as a proper one, and makes no contention that he is entitled to a peremptory instruction as to such issue, he should not be heard to say that the evidence does ■ not raise the issue; and it follows that, if the evidence raises such issue of fact, there must be some evidence that supports the finding made on the issue. And, under such circumstances, it would seem to be a most reasonable rule to say that a litigant, so circumstanced, cannot be heard to say that the finding has no support in the evidence.

But be that as it may, we find evidence raising the issue and the finding of the jury is supported by such evidence.

There is presented to us the twenty-third assignment of error, addressed to the. finding of the jury on special issue No. 1, to the effect that such finding is against the preponderance of the evidence. We find no merit in this assignment.

The jury has answered from the evidence adduced before them and we decline to disturb the answer.

The situation which we have just outlined and detailed, with respect to special issue No. 1, we find concerning special issue No. 2. The twenty-fourth assignment of error raises the issue that there is no evidence to support the finding on same, and the twenty-fifth assignment, that the finding of the jury is against the preponderance of the evidence.

The identical situation occurs as to special issue No. 3 in the thirty-fourth and thirty-fifth assignments of error, and as to special issue No.' 4 in the thirty-sixth and thirty-seventh assignments of error; as to special issue No. 5 in the twenty-eighth and twenty-ninth assignments of error; as to special issue No. 7 in the thirtieth and thirty-first assignments of error; as to special issue No. 8 in the thirty-eighth and thirty-ninth assignments, of error; as to special issue No. 9 in the fortieth and forty-first assignments of error.

We do not find that the answers made by the jury to these issues is against the preponderance of the evidence adduced before 'them.

The twenty-sixth assignment of error complains that the court erred in rendering judgment awarding appellees an undivided one-half interest in the estate of Herman Sparenberg, on the theory that the undisputed evidence shows that it was not the intention of said Sparenberg to control the entire community estate by his will, and that his surviving wife did not probate such will and accept thereunder with knowledge of any such intention on the part of her husband.

The twenty-seventh assignment of error makes complaint of such decree, on the theory that the preponderance of the evidence shows that such was not the intention of Sparenberg, and that his surviving wife did not accept under the will with knowledge of any such intention. We find that there is evidence to support both the finding made by the jury and the judgment rendered by the court as to these matters.

The forty-second assignment of error asserts that the trial court erred in rendering judgment on 'the verdict of the jury on the theory that the answers to issues Nos. 3 and 4 are so conflicting that they render the judgment thereon a nullity. These issues and the jury’s findings thereon are as follows: •

“Special Issue No. 3: Do you find from a preponderance of the evidence that the checks and certificates of deposits indorsed in blank by Mrs. Johanna Sparenberg between February, 1929, when she came to Fort Worth to live with her daughter, and the time of her death on November 18, 1933, were received by the defendant, Mrs. P. J. Schelb, for the use and benefit of her mother with the understanding, if any, that the taxes, insurance and upkeep on the Big Spring property would be paid out of same and the balance kept or invested for her mother? Answer: Yes.

“Special Issue No. 4: Do you find from a preponderance of the ■ evidence that the. checks and certificates of deposit inquired about in preceding interrogatories were obtained by Mrs. P. J. Schelb from Mrs. Johanna Sparenberg by reason of undue influence, if any, as herein defined to you, exerted over her by the defendants, Mr. and Mrs. P. J. Schelb? Answer: Yes.”

We do not find any conflict in these answers, under the theory on which appellees brought the consolidated cases.

Much could be said by us, after reviewing the testimony disclosed in the statement of 'facts, containing more than 1,000 pages, which furnishes ample reason and sufficient facts on which the jury could find, and did find, that the last will offered for probate as the solemn will of Mrs. Sparen-' berg — an old German lady well over 90 years of age, when she came to live with the appellants, who spoke English brokenly and who could not read or write English— which gave to the appellant Mrs. Schelb practically all of her estate, to the exclusion of her only other heirs, namely, her grandsons, the appellees, and which contained the peculiar provision that she left each of them $5,000, provided there happened to be that much on hand when she died, was executed by Mrs. Sparenberg while under the undue influence exerted upon her by the appellants. And let us say just here that appellants had so reduced the deceased’s bank account that at the time of her death there was no $10,000 in cash to be paid to her grandsons. And further the evidence in our opinion is ample to support the findings of the jury to the effect that appellants obtained the deposit certificates and the checks made payable to the deceased through such undue influence, and that they converted the proceeds thereof to their own use and benefit.

All assignments of error are overruled and the judgment of the trial court is affirmed.