Lord v. Hatcher

I am unable to agree with my associates in the holding that appellants' motion for rehearing should be refused.

When this appeal was originally decided by this court, I expressed to my associates my serious doubts of the soundness of their conclusion that the judgment of the trial court should be affirmed, but did not then enter my dissent.

Further investigation and reflection has convinced me that the judgment of the trial court cannot be affirmed without disregarding well-settled rules of decision by the courts of this state which illustrate and emphasize the power and duty of our courts in cases of this kind to protect the old, feeble, and distressed in mind and body, in the invaluable right which the law gives them to dispose of their property as they deem most conducive to their happiness and comfort. This conclusion constrains me to enter my dissent, the grounds of which will be stated as briefly as I may consistent with clarity.

The opinion of the majority of the court, written in the usual fluent and attractive style of its author, is an entertaining essay upon the issues discussed and the incidents of the trial, but is not an enlightening discussion of the questions of law and fact presented by the record, nor a convincing decision of the vital questions raised by appellants' brief.

The majority of the court having concluded that the judgment should be affirmed, the question of whether the verdict of the jury finding that Mrs. Lord did not have testamentary capacity at the time she executed the will in question is so against the great weight and preponderance of the evidence that it should not be permitted to stand, is a question of fact which our Supreme Court has no jurisdiction to determine. But I cannot refrain from entering my earnest protest against the holding of the majority that the verdict upon which the judgment in the case is based should, upon the evidence disclosed by this record, be upheld. This holding is in direct conflict with the numerous cases from this and other Courts of Appeals cited in appellants' brief, and tends to greatly lessen, and in a large measure destroy, the power of our courts to protect owners of property in their right to make such testamentary disposition thereof among their children or heirs as they may deem fair and just, and leaves such right subservient to the judgment of a jury as to how the jury may conclude the property should be distributed by the testator. In re Bartels' Estate (Tex.Civ.App.) 164 S.W. 859; Milner v. Sims (Tex.Civ.App.) 171 S.W. 784; Navarro v. Garcia (Tex.Civ.App.)172 S.W. 723; Vaughan v. Malone (Tex.Civ.App.) 211 S.W. 292; Hill v. Crow (Tex.Civ.App.) 241 S.W. 184; Stolle v. Kanetzky (Tex.Civ.App.)220 S.W. 557; Id. (Tex.Civ.App.) 238 S.W. 724; Id. (Tex.Civ.App.)259 S.W. 657; Adkins v. Henson (Tex.Civ.App.) 256 S.W. 967; Hodges v. French (Tex.Civ.App.) 256 S.W. 662; McGee v. Searcy (Tex.Civ.App.)258 S.W. 195; Bagwell v. Shanks (Tex.Civ.App.) 260 S.W. 222; Whitney v. Murrie (Tex.Civ.App.) 264 S.W. 270.

The will of Mrs. Lord was executed on June 6, 1923. The testatrix died on August 19, 1926, and the will was duly probated by the county court of Harris county on December 13, 1926. Within the four years allowed for such proceedings, contestants instituted this suit to set aside the probate of the will and to contest its probate. The hearing on this suit in the county court was had in 1931, and the contest was finally decided in the court below in favor of contestants in 1933.

Mr. H. E. Kahn, a prominent lawyer of Houston who wrote and witnessed the execution of the will, testified, in substance, that he had known Mrs. Lord since about 1910, she having come to his office several times with her husband, Nephi Lord, who was one of his clients; that in 1916, after the death of Mr. Lord, he wrote a will for Mrs. Lord in which she devised all of her interest in the community estate of her deceased husband and herself to her sons and grandsons, who are the beneficiaries named in the will involved in this contest. On June 6, 1923, Mrs. Lord again came to witness' office from her home in the country and told him that the will he had previously written for her had been lost or destroyed or had become misplaced, and she desired him to prepare another one for her. "On the last occasion when Mrs. Lord came to my office I talked to her quite a while discussing her former will and what became of it and as I have detailed I also asked her whether or not she had any desire to change her bequests and she said ``no,' and gave me as a reason that her husband died in 1914, that they had bought a piece of land, a section of land, six hundred and forty acres, located near Crosby, as the testimony has disclosed, and from an original deed conveying the property to Nephi Lord, he agreed among other considerations to pay off Twelve Hundred Forty-two ($1242.00) Dollars, which is still due the State, as purchase money on this land, that the money had not been paid to the State at the time of the death of Nephi Lord and had not been paid at the time she was in my office in 1923, and she stated to me that after the death of her husband, Leonard, Willie, and the other boys mentioned in the will, had taken care of the place and taken care of her and paid the State the interest every year due on this indebtedness and also had paid the taxes, and for that reason she thought these boys that are mentioned in the will should be the beneficiaries of her part of this land. * * * She said the old man died without a will and that his part, his half interest in this land would go to all the children. I asked her about Raymond Lord, her grandson, and she told me that Mrs. James, the mother of this child, was married to a man by the name of Cash and they lived together seventy-two days and separated previous to the divorce and she returned home to her mother, and she was pregnant at the time, and in due course Raymond Cash or Lord, who took the name of Lord, was born and made his home on the farm and she practically raised Raymond and thought as much of him as any of the children and having been around her place she considered, or told me that she would give Raymond an equal part with the other four boys that she had mentioned. After discussing all the facts with her, I called in my stenographer, Miss Myrtle Hamilton, now Mrs. Sisson, and dictated the will, and in the course of dictation I would ask Mrs. Lord about her disposition of the property. After dictating the will Miss Myrtle went out to write it up on the typewriter and brought it in and whether John Mathis came in or I sent for him to witness the will, I don't know, you will observe the will is attested to by two witnesses, John Mathis, and myself, and is signed by Mrs. Lord's mark, who never could read and write, and I held the pen and she put her hand on it and Miss Myrtle witnessed the will, as evidenced by the will itself. From my knowledge of Mrs. Lord, and from my conversation with her at the time of the execution of the last will, from her conduct and appearance, I say she was of sound mind at the time. It is my opinion that she was of sound mind when she executed the will offered in evidence in this case."

Mr. John Mathis, who had formerly been a law partner of Mr. Kahn, testified: "That he was present in the office when Mrs. Mary Jane Lord executed the will; that he heard the conversation between Mary Jane Lord and Mr. Kahn although he (Mathis) did not talk to her. That Mr. Kahn asked Mrs. Mary Jane Lord — What are you going to do with the other children? and she replied — That they would get or had gotten their share of their father's estate, and that these children (meaning the beneficiaries in the will) had looked after her and taken care of her and she wanted them to, have her part of the property. That there was nothing unusual in her demeanor; that she was a little woman, probably 65 or 70 years old, and that she talked rationally. That she appeared to be of sound mind."

Mrs. Myrtle Sisson, the stenographer to whom Mr. Kahn dictated the will, and who copied it on a typewriter, testified that she was in Mr. Kahn's office and heard the conversation between him and Mrs. Lord, in which she stated her reasons for devising all of her interest in the property to her sons and grandsons. "She said they had stayed on the place and taken care of her since their father's death and paid the taxes and taken care of it and she wanted them to have her part of it, so far as she was concerned she wanted them to have it. * * * You asked her if she had any other children and she said that she did and they would take their father's part, that the father had died and the other children would take that part and she wanted her boys to have her part of the estate." This witness further testified that from Mrs. Lord's conversation and demeanor at the time this will was executed, "she was of sound mind, she was perfectly calm and considerate."

The signing of the will by the testatrix and the attesting witnesses was in full compliance with the requirements of out statute.

This positive testimony of all the witnesses who were shown to have seen or talked to Mrs. Lord on the day the will was executed fully establishes prima facie her testamentary capacity at the time she executed the will. The test of such capacity does not require that the testator be wholly free from mental weakness or infirmity, nor from occasional hallucinations or mental lapses, but only requires that at the time, the will is executed he has sufficient mental capacity to understand that he is making his will, to know the nature and extent of his property, and the objects of his bounty, and to fully understand the disposition made of the property by the will. All these requirements are fully shown by this testimony. Salinas v. Garcia et al. (Tex.Civ.App.)135 S.W. 588, 591.

The only testimony adduced by appellees in support of their contention that Mrs. Lord did not at the time this will was executed have sufficient mental capacity to make testamentary disposition of her property goes no further than to show acts and demeanor of hers on various occasions prior and subsequent to the execution of the will, which, in the opinion of nonexpert witnesses, indicated that her mind was not sound. None of these exhibitions of mental unsoundness occurred in close proximity, in time, to the date on which the will was executed.

The opinion of the majority erroneously gives to a quoted portion of the testimony of Raymond Lord, the grandson of the testatrix, a beneficiary of the will and one of the appellants in this case a meaning in direct conflict with his testimony when considered as a whole. The quotation in the majority, opinion from the testimony of this witness gives no indication of the time referred to by the witness when he states he thought or expected Mrs. Lord was of unsound mind. Other portions of his testimony, however, conclusively fix this time. In answer to a direct question as to when he first observed her failing mental condition, the witness testified:

"Q. During the time you were around did you notice she was in a feeble condition when she broke her arm? A. She was feeble of course and getting old.

"Q. You also noticed about that time her mentality was not as sound as it previously was? A. No, sir, I did not think SO.

"Q. When did you notice that? A. I did not notice her in that condition until a year before she died (August 19, 1926).

"Q. In 1922 and 1923 you did not notice it? A. No sir, I did not."

This testimony of the grandson, who lived in the home of his grandmother during all of his infancy and boyhood, and who saw her more frequently, from the time her arm was broken in 1922 until she moved to Crosby in 1924, than any other witness, fully corroborates the testimony of Mr. Kahn, Mr. Mathis and Mrs. Sisson, as to the mental capacity of Mrs. Lord at the time the will was executed.

In my opinion there is no testimony in this record of sufficient probative force to raise an issue of Mrs. Lord's testamentary capacity, at the time the will was executed, under the tests prescribed by our law. There is no evidence of undue influence exerted by any of the appellants in procuring the execution of the will, and appellees did not request the submission of such issue.

This being the state of the record, I think the judgment of the trial court should be reversed and judgment here rendered in favor of appellants. If this conclusion is unsound, the case should be reversed and remanded because of the ruling of the court in excluding from the consideration of the jury the statements of the witnesses Kahn, Mathis, and Mrs. Sisson, that there was nothing in the demeanor or conversation of Mrs. Lord that indicated there was anything wrong with her mind. Each of these witnesses testified that from Mrs. Lord's conversation and conduct at the time the will was executed she was, in the opinion of the witness of sound mind. If it can be held that there is any evidence sufficient to raise the issue of testamentary capacity, the appellants were entitled to have these stricken statements of the witnesses considered by the jury. These excluded statements, it seems to me, strengthen and emphasize the conclusions of the witnesses as to the mental capacity of the testatrix, and in view of the preponderance of the evidence against the verdict, it cannot be said their exclusion from the consideration of the jury was not harmful to appellants.