Scott v. Townsend , 1913 Tex. App. LEXIS 1408 ( 1913 )

On Motion for Rehearing.

[23] The conclusion expressed upon original hearing that the objection urged to the testimony of Rose Hill, in effect, that in June, 1909, prior to his trip to Europe testator told witness that Mrs. Scott had been after him to make a will, was waived by a failure to urge a proper objection to the testimony to the same effect, given by James Coffey, is, perhaps, without precedent in the decisions. The principle upon which we reached that conclusion was that the improper objection to Coffey’s testimony amounted to no objection at all, and hence that the general rule holding appellants to a waiver of a right to complain on appeal of the admission of Rose Hill’s testimony should apply. However, that conclusion was unnecessary to sustain the ruling of the trial judge in our opinion. As noted in the original opinion, the jury were instructed that the foregoing testimony of Rose Hill could not be considered as any evidence of the truth of those declarations, but that the same was admitted for the purpose of showing, if it did tend to show, the state of testator’s mind at the time the will was executed. And all of the testimony of the witness James Coffey, as well as that of other witnesses relative to declarations made to them by Winfield Scott, in the absence of his wife, was likewise limited in the same manner by the special instruction quoted in the original opinion. Upon more mature consideration we are of the opinion that this evidence of Rose Hill, and other testimony of like character, was admissible as a circumstance for the purpose stated by the trial judge, and that it did not come within the hearsay rule. Stubbs v. Marshall, 54 Tex. Civ. App. 526, 117 S. W. 1030, and authorities there cited.

[24] If this conclusion be incorrect, then the error in admitting it would not require a reversal of the judgment under rule 62a, since there is nothing in the record to indicate that the jury did not obey the court’s instruction that the declaration could not be considered as evidence of its truth, for we must presume, as said by Chief Justice Brown in M., K. & T. Ry. Co. v. Beasley, 155 S. W. 183, “that the jury consisted of men of ordinary intelligence and honesty, having a desire to apply the charge to the facts.”

[25] We did not in terms discuss appellants’ forty-first, forty-second, forty-third, and forty-fourth assignments of error in our original opinion, but did consider them, and conclude that they should be overruled. By those assignments complaint is made that the trial court erred in overruling appellants’ motion for a new trial, first, because there was no legal and competent testimony tending to show that Mrs. Scott had exercised any undue influence on her husband in the execution of his will; second, because the evidence conclusively established that the execution of the will was not the result of any undue influence upon the testator, but was his own free will; third, because the jury ignored the court’s instruction to disregard the declarations of Winfield Scott as evidence of the truth of the declarations, aside from which there was no evidence to show undue influence upon the testator. In this connection we wish to add that in our opinion the evidence relied on in this case to show the will in question was the result of undue influence exercised upon the testator is at least as potent, if not more so, to prove that issue than the evidence introduced in the case of Bradshaw v. Seaton, 128 S. W. 943, cited in the original opinion, to prove the same issue. The most cogent facts and circumstances in evidence to support the verdict in that case are set out in the opinion. While the evidence so recited tended directly and positively to support the conclusion that Mrs. Rosa Seaton, wife of testator, J. B. Seaton, could have unduly influenced her husband to execute the will in controversy in that case, yet no witness testified that she ever made any suggestion to her husband relative to the making of any will at all, except I. N. Jackson, the attorney who prepared the will for J. B. Seaton, and who testified (as shown in the record of that case now before us) that on the occasion when he did so, J. B. Seaton and his wife came to his office together; that J. B. Seaton gave to.the attorney instructions how he desired to dispose of his property, one of which directions was that he desired to leave to his adopted son, Wesley Seaton, ?5, saying that his adopted son had not treated him right; that he had run off and left him, but finally increased such bequest to $25. This witness further testified that Mrs. Seaton did not discuss the terms of the will with testator at the time, except to suggest to her husband that the amount left to Wesley Seaton be increased, further testifying, “I don’t remember what amount Mrs. Seaton wanted to be given to Wesley Sea-ton.”

In the case at bar there was direct and positive evidence tending to show an effort on the part of contes tee to unduly influence her husband in the execution of his will, and the evidence relied on by contestant to show that the efforts so exerted had the desired effect consisted of circumstances only, but those circumstances were at least as strong, if not stronger, than were the circumstances relied on in Bradshaw v. Seaton to show that Mrs. Seaton attempted to exert the influence over her husband, which other evidence showed that she had the ability to exert.

The mouon for rehearing is overruled.