in Re: the Estate of Orphy Harry Longuet

NUMBERS 13-99-549-CV AND 13-99-637-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ IN RE: THE ESTATE OF ORPHY HARRY LONGUET, DECEASED ___________________________________________________________________ On appeal from the County Court at Law No. 1 of Victoria County, Texas. ____________________________________________________________________ O P I N I O N Before Chief Justice Seerden and Justices Dorsey and Rodriguez Opinion by Chief Justice Seerden The issue in these consolidated appeals is whether Venita Longuet ("Venita") exercised undue influence over her husband, Orphy Harry Longuet ("Harry"), in the execution of his 1997 will. In this will, Harry left his entire estate to his wife, Venita, without naming any contingent beneficiaries. When Venita offered Harry's 1997 will for probate, Harry's niece, Glenda Adams, filed a will contest alleging that Venita procured Harry's execution of the 1997 will through undue influence. Contending that the 1997 will was void, Glenda instead offered a copy of Harry's 1994 will for probate. After trial, the jury found from a preponderance of the evidence that Harry signed the 1997 will as the result of undue influence exerted by Venita. The trial court entered judgment on this verdict, and severed all matters pertaining to the 1997 will into a separate cause of action. Venita appealed this matter in Cause No. 13-99-549-CV. The trial court thereafter entered judgment admitting a copy of Harry's 1994 will to probate, and Venita appealed this judgment in Cause No. 13-99-637-CV. After consolidation of these appeals, we reverse, finding no evidence of undue influence, and remand for the admission of Harry's 1997 will to probate. Factual Background Harry and Venita married on May 15, 1997. Harry was ninety-one years old, and had been widowed twice before. His last marriage, to Peggy Moody Longuet, ended in January of 1996 when she passed away. While married to Peggy, Harry executed the 1994 will, leaving his property to Peggy, and listing his and Peggy's nieces and nephews as contingent beneficiaries. Venita, seventy-five years of age, had also been widowed twice before. Venita and Harry had been business acquaintances for some forty-five years before their courtship began. They began dating in October or November of 1996, some ten or eleven months after the death of Harry's previous wife, Peggy, and dated approximately six months before their marriage in May of 1997, in Lockhart, Texas. Harry executed the 1997 will in favor of Venita on May 22, 1997, one week after their marriage. Harry died on June 21, 1998, a little more than one year later. Undue Influence After being instructed that undue influence means "the influence or dominion by excessive importunities, imposition, or fraud, exercised at the time of the making of a will, that destroys the testator's free agency and overcomes his wishes in regard to the disposition of his property to such an extent that the will does not in fact express his wishes as to the disposition of his property, but rather expresses the wishes of the person exercising the influence," the jury found that Venita had exerted undue influence on Harry. In her first and second issues, Venita argues that there is no evidence or insufficient evidence to support the jury's conclusion that she exercised undue influence over Harry in the preparation and execution of his 1997 will. In her third and fourth issues, Venita argues that the trial court improperly permitted the introduction of irrelevant testimony regarding the familial relationship, and the introduction of this evidence prejudiced her in the eyes of the jury and resulting in an unfavorable verdict. Standard of Review In considering no evidence or legal sufficiency points of error, we consider only the evidence and inferences from the evidence favorable to the decision of the trier of fact, and disregard all evidence and inferences to the contrary. See State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 44 (Tex. 1998); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). If more than a scintilla of evidence supports the challenged finding, the no evidence challenge must fail. See General Motors Corp. v. Sanchez, 997 S.W.2d 584, 588 (Tex. 1999); Mayberry v. Texas Dep't of Agric., 948 S.W.2d 312, 316 (Tex.App.--Austin 1997, pet. denied). In considering a factual sufficiency point, we may not substitute our judgment for that of the trier of fact, but must assess all the evidence and reverse for a new trial only if the challenged finding shocks the conscience, clearly shows bias, or is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Applicable Law Influence is considered undue when the free agency of the decedent is destroyed and a testament is produced that expresses the will of the one exerting the influence rather than the decedent's true wishes. Estate of Davis, 920 S.W.2d 463, 465 (Tex.App.--Amarillo 1996, writ denied). To prevail on a claim of undue influence, a will contestant must establish: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963). Existence and Exertion of Influence The first prong of the Rothermel test requires the existence and exertion of an influence. Rothermel, 369 S.W.2d at 919. The exertion of undue influence may not be inferred by the mere opportunity to exert influence. Id. at 922. Opportunity must be coupled with evidence that an improper influence existed and that the influence was exercised at the time the disputed will was executed. Smallwood v. Jones, 794 S.W.2d 114, 119 (Tex.App.--San Antonio 1990, no writ). Under this element, we focus upon the relationship between the person who executed the document, the contestant, and the party accused of exerting undue influence. Id. at 923. In determining whether undue influence was exerted, we assess "the opportunities existing to exert the influence, the circumstances surrounding the execution of the document, the existence of any fraudulent motive, and whether the testator was habitually subjected to the control of the party accused." Davis, 920 S.W.2d at 466. Effective Operation of Influence The contestant must also prove the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament. Rothermel, 369 S.W.2d at 919. This inquiry focuses upon the decedent's mental or physical capacity to resist. Davis, 920 S.W.2d at 466-67. No Execution "But For" the Influence The third element of the Rothermel test asks if there was execution of a document which the person would not have made but for the alleged influence. Rothermel, 369 S.W.2d at 919; Cobb v. Justice, 954 S.W.2d 162, 166 (Tex.App.--Waco 1997, pet. denied). Establishment of this element is generally predicated upon an assessment of whether the testament provides for an unnatural disposition of the property. Davis, 920 S.W.2d at 467. Burden of Proof The burden of proving undue influence is upon the party contesting the execution of the will. Rothermel, 369 S.W.2d at 922. It is necessary for the contestant to introduce some tangible and satisfactory proof of the existence of each of the above stated elements of undue influence. Id. Further, it cannot be said that every influence exerted by one person on the will of another is undue, for the influence is not undue unless the free agency of the testator was destroyed, and a testament produced that expresses the will of the one exerting the influence. Id. Evidence of Undue Influence A court should permit the introduction of all relevant evidence of events before and after execution of the will, which tends to prove the existence of undue influence at the time of execution. Watson v. Dingler, 831 S.W.2d 834, 837 (Tex.App.--Houston [14th Dist.] 1992, writ denied). Undue influence may be shown by direct or circumstantial evidence, but will usually be established by the latter. Green v. Earnest, 840 S.W.2d 119, 121 (Tex.App.--El Paso 1992, writ denied). When circumstantial evidence is relied on, the circumstances must be so strong and convincing, and of such probative force, as to lead a well-guarded mind to a reasonable conclusion not only that undue influence was exercised, but also that it controlled the will power of the testator at the precise time the will was executed. Id. Circumstances relied on as establishing the elements of undue influence must be of a reasonably satisfactory and convincing character, and they must not be equally consistent with the absence of the exercise of such influence. Mackie v. McKenzie, 900 S.W.2d 445, 450 (Tex.App.--Texarkana 1995, writ denied); Garza v. Garza, 390 S.W.2d 45, 47 (Tex.Civ.App.--San Antonio 1965, writ ref'd n.r.e.). This is so because a solemn testament executed under the formalities required by law by one mentally capable of executing it should not be set aside upon a bare suspicion of wrongdoing. Garza, 390 S.W.2d at 47. Establishing the existence of undue influence generally involves inquiry into factors such as the circumstances surrounding execution of the instrument; the relationship between the testator and the beneficiary and any others who might be expected recipients of the testator's bounty; the motive, character, and conduct of the persons benefitted by the instrument; the participation by the beneficiary in the preparation or execution of the instrument; the words and acts of the parties; the interest in and opportunity for the exercise of undue influence; the physical and mental condition of the testator at the time of the will's execution, including the extent to which he was dependent upon and subject to the control of the beneficiary; and the improvidence of the transaction by reason of unjust, unreasonable, or unnatural disposition of the property. Mackie, 900 S.W.2d at 449; Green, 840 S.W.2d at 122. Analysis An examination of the evidence and inferences that tend to support the finding of undue influence reveals the following. Harry was ninety-one years old and had been recently widowed. He suffered from a number of ailments, and took numerous medications. Testimony suggested that his physical, mental, and emotional condition was deteriorating as he aged. The circumstances surrounding Harry and Venita's wedding were unusual. Harry and Venita married in Lockhart without inviting any of their friends or relatives. Although Venita told her family about the wedding, neither Harry nor Venita told any of their friends or acquaintances in Victoria about the marriage, and Harry did not tell his family, who found out about the wedding some months later. Harry executed the 1997 will in favor of Venita one week following the wedding. Testimony revealed that Harry and Venita's marriage differed in many respects from traditional notions about marriage. The couple maintained separate residences, although there was testimony that Harry planned to sell his home and belongings and move in with Venita, putting his beloved dogs up for adoption. Venita did not know Harry's religion, what medications he took, or the names of Harry's two dogs. Witnesses testified that they rarely saw Venita and Harry together, and that Harry was usually found at home alone, whereas Venita occasionally frequented the Forum Club. Although Harry had not consumed alcoholic beverages for twenty-five years, Venita began giving him bourbon and orange juice "for his bronchitis." When Harry passed away on a trip, Venita failed to inform Harry's family until some days afterwards, and failed to hold a memorial service in his honor. Although Venita told Harry's family that she would bury Harry in her family's cemetery plot, Venita instead had Harry cremated and mailed his ashes in a box through the United States mail back to his residence. The testimony adduced at trial showed that Harry had enjoyed a warm and loving relationship with his family, including his brother and his family, and relatives of his deceased wife, Peggy, before he began his relationship with Venita. Harry's relationship with his family deteriorated significantly following his marriage to Venita. Harry accused one nephew of spying on him and attempting to kill him, and suggested that a niece was harassing him. There was some evidence of ill-feelings between Venita and Harry's family, and in fact, following Harry's death, Venita told Glenda Adams, Harry's niece, that he had never loved her. Considering all of the foregoing in the light most favorable to the verdict, we conclude that there is less than a scintilla of evidence to support the jury's finding of undue influence. Although Venita clearly had the opportunity to exert undue influence on Harry, the evidence fails to show that any such improper influence existed and that the influence was exercised at the time the disputed will was executed. Smallwood, 794 S.W.2d at 119. On the contrary, John E. Dorris, Harry's attorney, testified that all instructions pertaining to the will came directly from Harry, and that Venita was not present during the execution of the will. Moreover, although Harry was infirm, the evidence showed that he understood the nature of his estate and his beneficiaries. There was no testimony suggesting that Harry lacked the mental or physical capacity to resist an exertion of undue influence. Davis, 920 S.W.2d at 466-67. Finally, the third element of the Rothermel test asks if there was execution of a document which the person would not have made but for the alleged influence. Rothermel, 369 S.W.2d at 919; Cobb, 954 S.W.2d at 166. Harry's 1997 will leaves his estate to Venita, his wife, which is a natural disposition of his property. Davis, 920 S.W.2d at 467. Moreover, we note that Harry's 1997 will resembles his previous will insofar as both documents designate Harry's spouse as beneficiary; the only distinction between the two wills is the elimination of contingent beneficiaries in the 1997 will. We sustain Venita's first issue. Because we have sustained this issue, we need not address her remaining points of error. See Tex. R. App. P. 47.1. Conclusion Each claim of undue influence is different; thus, the evidence must be reviewed on a case-by-case basis. See Rothermel, 369 S.W.2d at 921-22. Typically, the jurors are in the best position to sift through the direct and circumstantial evidence presented concerning undue influence. See Cobb, 954 S.W.2d at 166. However, in the instant case we must conclude that the jury did not have before it probative evidence tending to show undue influence. See id. Consequently, we reverse the trial court's judgments in Cause Nos. 13-99-549-CV and 13-99-637-CV, and remand to the trial court for proceedings consistent with this opinion. ROBERT J. SEERDEN, Chief Justice Do not publish . Tex. R. App. P. 47.3. Opinion delivered and filed this 21st day of December, 2000.