Greene v. Watts , 1960 Tex. App. LEXIS 2005 ( 1960 )

CRAMER, Justice.

This is a will contest. Lee W. Oliver, a colored male, 67 years of age on or about August 11, 1954, in his own handwriting wrote on at least two pieces of paper, one of which (Exhibit 6) was offered for probate as his holographic last will and testament. Thereafter on October 27, 1954, he died and his holographic will, dated August 11, 1954, was admitted to probate as his last will, by the Probate Court of Dallas County, on December 16, 1954. The instruments offered in evidence here as a will were as follows: Photostatic copy of the instrument offered as the last will of Lee W. Oliver, Exhibit 6, which was probated by the Probate Court on May 27, 1955, was marked and attached to the Statement of Facts.

The County Court judgment was appealed to the District Court and after a trial de novo the jury found in answer to the single issue (Tr. p. 21) submitted to them, as follows: “Do you find from a preponderance of the evidence, that the deceased, Lee W. Oliver, did not possess testamentary capacity, as that term is defined to you herein, at the time of the execution of the instrument dated August 11, 1954, and offered for probate as his last will and testament ?” Answer: “He did not possess testamentary capacity.”

On such verdict the trial court entered the judgment here appealed from which set aside the judgment of the Probate Court admittng the instrument involved to probate, and denied the probate of the will of Lee W. Oliver, deceased and taxed the costs against Bertha Greene and her husband.

From such judgment this appeal to this Court has been duly perfected.

Appellants here brief five points of error.

Points 1 through 4, briefed together, assert in substance error (1) in overruling proponents’ motion for instructed verdict presented at the conclusion of all the evidence because there was no evidence of sufficient probative value to justify the submission of the issue of testamentary capacity of Lee W. Oliver at the time of the executing of the will; (2) in entering judgment for appellees when there was no evidence of probative force upon which the verdict of the jury could have been based; (3) in entering judgment for appellees, because the verdict of the jury was contrary to the evidence in that the great weight and preponderance of the evidence showed that at the time of executing the instrument dated August 11, 1954, and offered for probate as his last will and testament, Lee W. Oliver, deceased, possessed testamentary capacity as that term was defined by the jury; (4) in entering judgment for appellees because the verdict is not supported by sufficient evidence since all testimony offered in support of the alleged lack of testamentary capacity of Lee W. Oliver, deceased, was based upon observations too remote in time from the execution of the instrument dated August 11, 1954, and offered for probate as his last will and testament; therefore did not constitute evidence of a probative value as to the testamentary capacity of said deceased on that date.

Points 1 through 4 are countered in substance, (1) The trial court properly overruled appellants’ motion for instructed verdict presented at the close of the testimony because there was ample evidence of probative force that Lee W. Oliver lacked testamentary capacity at the time inquired about. (2) The evidence abundantly supports the jury finding that testator lacked testamentary capacity at the time in question and the court correctly entered judgment upon the verdict. (3) The court correctly entered judgment for appellants based on the verdict because the overwhelming weight and preponderance of the evidence showed testator lacked testamentary capacity at the time in question. (4) The court correctly entered judgment for appellees based on the verdict of the jury which was supported by ample evidence of testamentary incapacity, both lay and expert, concerning events immediately before and after August 11, 1954, which came into evidence without objection by appellants concerning remoteness or relevancy.

Points and counterpoints 1 through 4 raise only the question of the sufficiency of the evidence on the issue of testamentary capacity of the testator, Lee W. Oliver, deceased, at the time the instrument offered in evidence as a will was personally executed by Lee W. Oliver, deceased, and witnessed by two qualified disinterested witnesses.

We will consider the evidence first as to whether or not it is sufficient to raise the only issue submitted for the tryor of the facts, to wit; testamentary capacity, at the time of the execution of such instrument.

As stated in 44 Tex.Jur. 571, Sec. 31, “The rule in Texas is that the burden is on the proponent to show by positive evidence, at the time he seeks to have the will probated, that the testator was possessed of mental capacity at the time the will was executed, sufficient to make a valid, will.” 44 Tex.Jur. 571; Wills, Sections 31 and 32, a preponderance of the evidence being the test in answering the issues on testamentary capacity.

The record shows Dr. Ellen Loeb’s testimony as the only expert witness to testify, was challenged by Bertha Greene, asserting some of her answers on cross examination ■ destroyed any probative force and effect attributed to her as a witness on direct examination. Asserting also that appellees must stand or fall on the testimony of Dr. Loeb and that at best, her testimony does no more than raise a suspicion of incapacity.

Dr. Loeb testified as to her qualifications as a Doctor, and that she was the author of the Veteran’s Administration Hospital written records during the seven days admission of Lee W. Oliver in that hospital from October 20, 1954 through October 27, 1954, the day he died. When she examined Oliver on October 20, 1954, she found:

“A well developed, poorly nourished colored male, blood pressure 220/120, whose sensorium was very cloudy — he was able to answer if directly questioned but he was confused as to time, place and date — there was marked arterial constriction bilaterally and tortuousity of the veins, more so on the right — breath sounds were very faint — cranial nerves were active except for right facial paralysis — the trunk protruded on the left — deep tendon reflexes in the left were hyperactive in the left arm and were somewhat diminished in the left leg — Babin-ski was very difficult to test because the left toe was bent toward the head and did not move on stimulation — because of the patient’s confusion, it was not possible to do any sensory tests— there was marked weakness of the left leg and questionable paralysis of the left arm”.

Dr. Loeb’s testimony and written report stated, concerning his last illness, that in his hospital course he became more and more stuporous and finally he was unable to swallow, and that her diagnosis was hypertensive cardio-vascular disease and encephalomalacia due to thrombosis. There was in evidence facts on first admission of Oliver to the Veteran’s Hospital at McKinney in 1953, included in Parkland Hospital records. The 1953 record discloses that about one year prior to the “Will”, Oliver was hospitalized about two and one half months, during which time it was discovered that he had a pronounced paralysis of the left arm and was unable to use the biceps muscles whatsoever. His left leg was noted to be weaker than the right, his tongue deviated to the right, he had a left-sided facial weakness; and he tended to fall toward the left side when he attempted to walk.

Parldaud’s record also show a report of the diagnostic x-ray consultation from Parkland Hospital as follows:

“Skull Series: Three standard projection of the skull reveal moderate soft tissue swelling over the left side ■ of the skull. No fractures or intra-cranial calcifications can be identified. The sella turcica and petrous ridges appear normal. The patient appears to be edentuious with dentures and in the maxilla there is a calcific density thought to be an undcscended tooth.”

The final diagnosis in the V. A. Hospital when he left there on July 29, 1953 was:

“1. Hypertensive cardiovascular disease. (Treated, imp.)

a. Cardiac enlargement.

b. Cardiac insufficiency.

c. Activity slightly limited.

“2. Encephalomalacia, due to thrombosis.

“3. Arteriolar nephrosclerosis

2. Axotemia

“Operations: 1. Left stella block. July 20, 1953.”

On cross examination, material here, Dr. Loeb also testified that based on her examination and treatment of Lee W. Oliver, now deceased, in October 1954, Lee W. Oliver was not a person of unsound mind.

Naomi Favors, a widow, a school teacher, with a Master’s Degree and teacher’s certificate, testified in substance, that she was an eye witness to testator signing the will; that before Oliver signed his will; and before he had his series of strokes, he was a quiet man, who did not talk about his business when he lived with her; but when he was in ill health he confided to her, also that she had known Lee Oliver for some 21 or 22 years; he lived across the street from her; she had a sister he went with; she kept up her acquaintance with him from that time until he died, about October 27, 1954, in the Veteran’s Hospital in McKinney, Texas. The last year of his life he lived upstairs in her house, she lived downstairs. He worked at the colored Elks Lodge; was Treasurer. She understood he had treatments. She had not heard him express any affection towards any of his aunts or uncles; they talked frequently over the situation most every night when he came from the Lodge. She remembered Lee Oliver writing a will shortly before his death; he asked her to sign as a witness. At that time he asked her to sign as a witness. At that time he was of sound mind, she did not observe anything in his conversation, and the actions of the Lee Oliver that indicated he didn’t know what he wanted done with his property or who he wanted to leave it with in case of his death. He was positive he wanted to leave it to his cousin. She saw nothing in his conversation or in his actions that indicated that he was of * * * he didn’t know what he wanted done with his property, or who he wanted to leave it with, or to in case of his death; he was always positive he wanted it left to his cousin. She “saw him write every bit of this will, he was sitting at the desk in her living room downstairs here in Dallas, around 2 o’clock, somewhere in that neighborhood. He called her in to see him write his will. He said he wanted everything he possessed to go to his cousin, Bertha Greene of Houston, Texas, and gave her his telephone and house number. A. In Houston. Q. In Houston. Did he give you any other direction with reference to getting in touch with Bertha if anything happened to him? A. He told me if anything happened at any time, to get in touch with Bertha Greene, and the night of his last illness, when I found him ill upstairs, the first thing he told me was to get in touch with her right away. Q. Did he use any expression of endearment, in describing his relations to and affection for Bertha Greene? A. At all times.”

Under the above record we are of the opinion the evidence was sufficient to make a question of fact as to whether or not the testator did or did not possess testamentary capacity, and therefore we must overrule points 1 through 5, and affirm the trial court’s judgment.

It is so ordered.