Brown v. Mitchell , 87 Tex. 140 ( 1894 )

The following questions are certified in this case:

"1. Where the issue is not one of undue influence, but solely of mental capacity, whether the party asserting that the deceased had sufficient mental capacity to make the will may be permitted to show that within a reasonable time before the execution of the will, and while the testatrix was of sound mind, a will of identical import had been prepared at her instance, and according to her directions; and this in a case where the preparation of the last will was made at the instance of the husband claiming under it, without it being made to appear whether in directing its preparation he was acting of his own motion or under instructions from the testatrix.

"2. Whether it is competent for a witness, testifying as to mental capacity, to state the following answers to the following questions, over the objections that conclusions both of law and fact were called for: 'State whether or not in your opinion Mrs. Lizzie Brown had sufficient mental capacity at any time after you first saw her to make and declare her last will and testament.' Answer: 'At no time did Mrs. Brown, in my opinion, have sufficient mental capacity to make or declare her last will and testament. Further, I do not think she was capable of making a will.' "

Answer to first question: The mental capacity of Mrs. Brown to make the will contested being the issue before the court, acts done or declarations made by her before, at the time of, or after the making of the will, which tended to throw light upon the condition of her mind at that time, were admissible in evidence. The making of a former will stands upon the same footing as declarations made, and evidence concerning that fact would be admissible under the same circumstances.

The admissibility of such evidence depends largely upon the other evidence introduced, showing the relation of such declarations or acts to the facts to be proved. The mere fact that Mrs. Brown had at any time prior to the making of this will caused one to be prepared which was the same or of like import, could not of itself throw any light upon her condition of mind at the time the last will was made, especially when it was prepared by direction of another person. Under the facts stated the evidence was not admissible.

Answer to the second question: Referring to the original record of this case when before this court, we find that substantially the same questions, answers, and objections as are contained in this question were before this court, and it was held that they were admissible in evidence. Brown v. Mitchell, 75 Tex. 15.

If the evidence showed that the witnesses were cognizant of the facts upon which the opinions were based, the evidence was admissible.

Delivered June 7, 1894.