In Re Ramon's Estate

SMITH, J. This is a proceeding to probate the will of Eugenio T. Ramon, deceased, in which he sought to devise his entire estate, other than that embraced in a few minor specific bequests, to his niece, Alice Louise Worsham. The probate of the will was contested by other relatives than the principal devisee, including an alleged common-law wife. The contest failed in both the county and district courts, the will was ordered probated, and the contestants have appealed. The contest was based upon the contentions that the testator was without testamentary capacity, and that he executed the will in response to undue influence exercised upon him by the mother of the principal devisee. Appellants attack the findings of the jury that the testator was possessed of testamentary capacity and was not unduly influenced, urging that those findings were without support in the evidence, and were contrary to the preponderance of the evidence. We have very carefully considered the testimony in the case, and conclude that the evidence is substantially in conflict upon the issues mentioned, and that the jury findings thereon were fully warranted. That being the case, neither the trial court nor this court has the authority to disturb those findings. These matters are raised in appellants’ second and third propositions, which must be overruled. Angelita Sobrevilla de Ramon claims to be the common-law wife of the deceased testator, and because of that claim was made a party to the proceeding by the proponent of ■the will. She thus assumed the position of a contestant of the will. Evidence was offered by the contestants to establish the alleged claim of Angelita Ramon that she was the common-law wife of the testator, presumably *352 in support of tiie contestants’ contention that the will, which cut off Angelita from the estate, was an unnatural one. In rebuttal of this claim, the proponents put on testimony tending to show that Angelita’s relation to the testator was not that of a lawful wife, but was illicit. The contestants vigorously contend that this evidence was inadmissible, and prejudicial besides. We conclude, however, that as appellants opened up the issue of the true relations between Angelita and the testator,' and adduced material evidence to support the legality of those relations, they cannot complain that appellees met them upon their own ground with testimony tending to dispi’ove the legality of those relations. Appellants’ first proposition is overruled. During the direct examination of the principal beneficiary while a witness upon the stand, counsel for' appellees asked and she answered the following question: “Q. Well, did she (Angelita Sobrevilla de Ramon) or did she not come to your mother’s home in May of 1926? A. Yes, sir, she came. “Q. What was the purpose of her visit? A. She came to tell mother that uncle (the testator) was sick and he thought he was very sick, and wanted my name written down on a piece of paper and—” At this juncture the witness was interrupted by counsel for appellants, who objected to her testimony upon the ground that she was attempting to testify to statements made by the deceased testator in his lifetime, and that such testimony was prohibited under the familiar provisions of article 3716, Rev. St. 1925. After some discussion between the court and counsel, counsel for appellees, although expressing his belief in the admissibility of the testimony, but desiring to avoid any possible error, withdrew the question, and the court instructed the jury not to consider the testimony. Counsel for appellee then asked the witness: “What statements if any did Angelita Sobrevilla ever make to you with regard to her relationship to Eugenio T. Ramon?” Upon appellants’ same objection, appellee withdrew that question, and asked this one: “What claim if any did Angelita Sobrevilla ever make in your presence as to wages due her after the death of Eugenio T. Ramon?” Appellants made a like objection to the question and contended to the court that appellee was seeking by indirection, by asking and then withdrawing questions, to get improper evidence to the minds of the jurors. Counsel for appellee vigorously repelled this charge, insisting that the questions were asked in good faith in the belief that the testimony sought to be elicited was admissible, but had been withdrawn in order to avoid any question of error. After some discussion the trial court overruled appellants’ objection to the question last quoted, which was repeated to the witness, who answered that she did not understand the question. Counsel for appellee then stated the question in a different form, as follows: “Well, I will put it this way: Subsequent-to the death of Eugenio T. Ramon, did you or did you not have any conversation with Angelita Sobrevilla, leaving out now anything that she may have told you that Ramon said —after the death of Eugenio T. Ramon, what conversation if any did you have with Angelita Sobrevilla?” The witness did not answer the question, repeated to her in different forms, upon her explanation that she could not dissociate the statements of Angelita Ramon from the testator. It is not necessary to decide if the testimony sought to be elicited by the questions asked and objected to would have been inadmissible, of which there is some doubt. It is only sufficient to say that the testimony actually admitted, about' which appellants could complain, was stricken and the jury instructed to disregard it, and none of it remaining in evidence was so definite or prejudicial as to have been harmful to appellants. It is apparent that appellees sought to restrict the witness’ testimony against any invasion ■ of the domain prohibited in article 3716, and the matters raised in appellants’ fourth proposition, here under consideration, present no harmful error, if any. ' In their fifth proposition appellants complain of the -closing argument of appel-lees’ counsel in which it was stated counsel for appellants did not tell the jury that Angelita Ramon, the alleged common-law wife, would receive half of the estate in controversy, regardless of the testator’s will; that the testator had accumulated all the property in controversy. There is nothing in the bill of exception concerning this transaction to negative the assumption that this argument was provoked by the argument of appellants’ counsel, nor did appellants, although objecting to the argument at the time it was made, request the court to direct the jury to disregard it. Such a motion is incumbent upon a party complaining of an improper jury argument, unless, indeed, the objectionable argument is of - such inflammatory, prejudicial, and uncalled for nature as to be incurable by any instruction from the court, as is sometimes the case. The record does not disclose such to be the case here, and we cannot say the trial judge abused his discretion when he failed to so instruct the jury upon his own motion, and afterwards overruled a motion for new trial embracing the assignment of error now under consideration. Appellants’ eighth assignment of error, submitted as the sixth and final proposition, is that: “The Court erred in refusing to per.mit the contestants over the objections of Proponent that same was irrelevant and immaterial to any issue in the case and that no predicate had been laid to introduce such testimony and that there are various and sundry kinds of insanity and that contestants offered to prove that Manuel Ramon, a brother *353 of the testator herein, had three times been adjudged insane by proceedings duly had in the County Court of Webb County, Texas, and had been confined in the Southwestern Insane Asylum at San Antonio, Texas, and that the executor, Thomas Worsham, Jr., had taken advantage of the feeble minded condition of other members of the Ramon family and in' furtherance of his design and scheme to secure possession of the feeble minded Ramon family, that the said Thomas Worsham, Jr. had secured deeds to all of the property of the said Manuel Ramon, for the reason that said testimony was relevant upon the issues of the system of the Worsham Family in exercising undue influence over the mentally unbalanced members of the Ramon family and bore directly upon the issue in this cause of the undue influence exercised by the members of the Worsham family over the testator herein.” It is obvious that no specific ruling or action of the trial court is pointed out in this assignment, nor is the purpose of the assignment apparent from its language, which is correctly copied from the transcript into appellants’ brief, and quoted above. The assignment in this form presents nothing for reyiew. The judgment is affirmed.