Mitchell v. Deane , 1927 Tex. App. LEXIS 260 ( 1927 )

HIGGINS, J.

By will dated July 1, 1919, Dr. J. H. Mitchell devised and bequeathed to his six children his estate, share and share alike, naming his son J. B. Mitchell executor. Dr. Mitchell died. J. B. Mitchell filed application to probate the will, and the same was admitted to probate.

Thereafter the appellant, Rena Mitchell, a daughter of the deceased, filed an application to set aside the judgment probating said will, and offered for probate a will of Dr. Mitchell dated August 25,1923, and set up that the interested parties under the will previously admitted to probate were Emma G. Deane, née Mitchell, and husband, G. M. Deane, J. B. Mitchell, L. B. Mitchell, J. E. Mitchell, Al-bertina Mitchell, a minor, sole heir of M. V. Mitchell, deceased, of whom L. B. Mitchell is guardian, and herself.

Appellant was the beneficiary of the last will except for $1 given to each of the other children.

Upon hearing in the county court the judgment probating the will of July 1, 1919, was. set aside, and the will dated August 25, 1923, admitted to probate as the last will of Dr. Mitchell. Upon appeal to the district court the case was tried before a jury, and upon the findings made the will of July 1, 1919, was probated as the last will of the deceased.

Upon the trial Pauline -Mitchell, wife of ohe of the sons of the deceased, was permitted to testify as to the mental capacity of the testator over objection that her testimony was inadmissible, under article 3716, R. S.

It is unnecessary to review the numerous decisions bearing upon the question of her competency as a witness. She was not a party to the suit and could not properly have been so joined. She was not an heir at law of Dr. Mitchell, nor a legal representative of his estate: She had no. property, interest in the estate. The interest which her husband had was his separate estate. This being her status, she was not an incompetent witness, under article 3716, R. S. Gamble v. Butchee, 87 Tex. 643, 30 S. W. 861.

G. M. Deane also testified. He was an incompetent witness because be was a necessary party to tbe proceeding, being tbe husband of Emma G. Deane, Dr. Mitchell's daughter, who was one of bis heirs at law and a beneficiary under tbe first will. Leahy v. Timon, 110 Tex. 73, 215 S. W. 951. His testimony' was admitted without objection and this was a waiver of bis incompetency to testify. Walker v. Fields (Tex. Com. App.) 247 S. W. 272.

However, appellant later moved to withdraw bis testimony and asked that tbe jury be instructed not to consider same for any purpose. Error is assigned to the overruling of this motion. No reason is given for failing to object to the evidence when offered. In such case tbe action of tbe court upon tbe motion rested in its discretion, and no abuse thereof is apparent. Mo. Pac. Ry. v. Lamothe, 76 Tex. 219, 13 S. W. 194; Montgomery v., Gallas (Tex. Civ. App.) 225 S. W. 557; Fort Worth & R. G. Ry. v. Andrews (Tex. Civ. App.) 29 S. W. 920; Hatzfeld v. Walsh, 55 Tex. Civ. App. 573, 120 S. W. 526; Postal Tel. Co. v. Harriss, 56 Tex. Civ. App. 105, 121 S. W. 359, 122 S. W. 891; Knights of Maccabees v. Johnson (Tex. Civ. App.) 143 S. W. 718; Sockwell v. Sockwell (Tex. Civ. App.) 166 S. W. 1188.

Affirmed.