Armistead v. Benefield , 1922 Tex. App. LEXIS 1280 ( 1922 )

^* Writ of error dismissed for want of jurisdiction November 15, 1922. At the trial appellant offered as evidence the first paragraph of an instrument written by the deceased (at a time not shown) and found among his private papers after his death, described in the bill of exceptions, as an "old mutilated will with signature torn off." Said paragraph of the instrument was as follows:

"In the name of God, amen: I, W. T. Armistead, a bachelor, being of sound mind and disposing memory and desirous of disposing of my worldly affairs while I have strength and intelligence so to do, do make and publish this my last will and testament, revoking all former wills heretofore by me made," etc.

On appellee's objection thereto on the ground that same was irrelevant and immaterial the court excluded the excerpt from the instrument. Appellants insist the action of the court was error which entitles them to a reversal of the judgment, and cite Brown v. Mitchell, 87 Tex. 140,26 S.W. 1059, as supporting their contention. In that case the Supreme Court said that acts done or declarations made by a testator "before, at the time of, or after the making of the will," which tend "to throw light upon the condition of his mind at that time, were admissible in evidence," and that "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." That the testimony excluded was not within the rule is plain. It did not tend to throw light upon the condition of the deceased's mind at the time he made the will in question here, and would have been without any probative force whatever had it been admitted.

Having instructed the jury that the burden was upon appellee "to show that W. T. Armistead was of sound mind at the time he executed the instrument," the trial court refused to give a special charge requested by appellants that the burden was on appellee "to show that W. T. Armistead was of sound mind at the precise time he executed the will." The difference between the instruction given and that refused lies in the fact, it will be noted, that the word "precise" was used in the one refused, and was not used in the one given. The contention that it was error to refuse to give the special charge is predicated on testimony which, appellants insist, showed "that the testator was at times and frequently [quoting] unable to know or understand anything," and at other times "appeared to be perfectly normal in mind." The argument is that the burden was therefore on appellee to show the condition of the testator's mind at the "precise" time he executed the will. That, in effect, was what the trial court told the jury. The time the testator executed the will necessarily was the "precise time" he executed it, and not some other time.

Another contention urged by appellants is that the testimony did not warrant the finding of the jury that the testator was of sound mind at the time he made the will. The contention is predicated, it seems, on testimony that the testator acted queerly and did not appear to know what he was doing at times, and on the absence of testimony showing when the will was made, otherwise than by its date, and the absence of direct testimony showing the condition of the testator's mind while he was writing and when he signed the instrument. The will purported on its face to have been written and signed by the testator on August 12, 1920. That was sufficient evidence, in the absence of testimony to the contrary, that it was executed on that day. 40 Cyc. 1424; Locoste v. Odam,26 Tex. 458 . While there was no testimony showing the particular time during that day when the testator executed the will, and no direct testimony showing the condition of his mind at the time he signed it, there was ample direct testimony as to the condition of his mind on that and all other days to authorize an inference that he possessed testamentary capacity at all times during that day. Indeed, as we construe it, the testimony, while conflicting in some respects, was amply sufficient to support a finding that there never was a time when the testator lacked testamentary capacity, and we doubt if it could be held to have supported a finding to the contrary had one been made by the jury.

The judgment is affirmed.