Bradshaw v. Seaton , 60 Tex. Civ. App. 278 ( 1910 )

SPEEB, Associate Justice.

H. C. Bradshaw and wife, Bosie Seaton Bradshaw, formerly Mrs. Bosie Seaton, sought to probate the last will and testament of J. B. Seaton, deceased, and Wesley Seaton, an adopted son of the said J. B. Seaton, contested the same on the ground that deceased was mentally incapable of making a will and that he had been unduly influenced by the said Eosie Seaton Bradshaw. In the County Court the will was duly admitted to probate, but on appeal to the District Court upon a finding of a jury on special issues that the deceased had been unduly influenced by the proponent, Eosie Bradshaw, the will was denied probate. From this judgment the proponents have appealed.

The first and second assignments of error complain that there is no evidence to support the finding of the jury on the issue of undue influence, and the third complains that the court erred in submitting the issue at all, since it was not raised by the evidence. A majority of us overrule these assignments. It is not profitable to go into a long statement, but we will suffice it by saying that in our opinion there was sufficient evidence, both direct and circumstantial, not only to raise the issue, but to support the verdict and judgment affirming it. We reach this conclusion, too, independently of a consideration of the proved statements of the deceased himself. However, we are not sure that even these statements, bearing as they do on the deceased’s state of mind, are not evidence in part at least on the issue of undue influence. Undoubtedly, a man whose mentality is seriously impaired is more susceptible of the influence of another than he otherwise would be. But as stated, independently of this consideration, we think the evidence is sufficient. There are the circumstances of the disparity of age between the parties, and her unseemly haste in marrying the deceased, who was shown to have some wealth, coming as she did from a distant State for the purpose of marrying him “if they suited;” there are also the circumstances that she uniformly accompanied the deceased wherever he went and transacted all his business for him; that she was instrumental in sending contestant, a boy of tender years, to a distant State; that the deceased loved the boy tenderly and wept when his absence was mentioned. It was proved by more than one witness that the proponent put into the deceased’s mouth what he should say to E. L. Ferguson, a brother of the contestant, when he demanded the custody of the young boy; it was shown by'any number of witnesses that during the last few years preceding the making of the will deceased’s mind was seriously impaired, so much so that he could hardly recognize anyone with whom he talked. The will cut off the contestant' with only twenty-five dollars. We make no effort to enumerate all the circumstances which induce our conclusion. Justice Dunklin, however, does not concur in this view and expresses the opinion that the issue of undue influence was not raised by the evidence.

We overrule the fifth assignment of error complaining that a certified copy of the deed of adoption of Wesley Ferguson was read in evidence over appellants’ objection that the same had not been filed among the papers of the cause as required by statute, upon the court’s explanation that the same had been used in the trial of the cause in the County Court. -The ends of the statute had evidently been met by the use of the certified copy on the trial in the County Court prior to its introduction in evidence in the District Court.

We find no error in the sixth assignment complaining that the court improperly made use of the word “fraudulent” in connection with proponent’s conduct when the real issue was one of undue influence. Ho issue of fraud was submitted to the jury and -no possible harm could have come to appellants in the matter referred to. Besides, undue influence is itself a species of legal fraud.

There is no error in the judgment and it is affirmed.

Affirmed.

Writ of error refused.