Keding v. Kveton

•LANE, J. On the 11th day of October, 1920, appellee, Frank Kveton, filed an application in the county court of Austin county, Tex., praying for the prohate of the purported will of one John Kveton, Sr., deceased, which is in form and substance as follows: “The State of Texas, County of Austin. “We, the undersigned John Kveton and wife Anna Kveton, of Austin county, Texas, being of sound mind, memory and understanding, do hereby make our last will and testament in manner and form as follows: [613] “It is our will and we decide, that the survivor of us shall remain in full possession of all our property, both real and personal, whatsoever and wheresoever it may be, and after the death of both of us, our son Frank Kveton shall receive all of our present farm consisting of 264 acres of land, our present homestead, with improvements thereon, situated on Bernardo Prairie in Austin county, Texas. He shall be the sole owner of said farm, after paying to his. sisters, our daughters Johanna Keding, nSe Kveton, wife of August JCeding, and Josephine Lux, wife of Ferdinand Lux, both of Austin county, Texas,' the sum of ($300.00) three hundred dollars each. “We give and bequeath to our said daughter Josephine Lux our brown mare. “It is our will and we decide, that the balance of our personal property, whatsoever and wheresoever it may be, be divided among our above named three children, share and share alike, after all funeral expenses for both of us have been paid. “We hereby appoint our son Frank Kveton and our son in law Ferdinand Lux executors of this our last will and testament without bond, revoking all other wills heretofore made by us. “Witness our hands this the 19th day of February, A. D. 1914. John Kveton, Sen. her “Anna X Kveton. mark “Signed and declared by the said John Kve-ton and his wife Anna Kveton as and for their last will and testament, in the presence of us, who at their request and in their presence and in the presence of each other, have hereunto subscribed our names as witnesses.. “Sealy, Texas, February 19th, A. D. 1914. “Aug. Iselt. “Otto Kohlleffel.” On the same day Josephine Lux and Johanna Keding, joined by her husband, August Keding, hereinafter called appellants, filed their contest of such probate. The only grounds of contest alleged were that the instrument offered for probate was not the will of John Kveton, Sr., but that if said John Kveton did in fact execute said instru•ment he did so while he was under the undue influence of appellee, Frank Kveton, and therefore said instrument was not the will of John Kveton, Sr., but was the will of said Frank Kveton. Upon a hearing in the county court the probate of the will was refused, ¿nd the proponent appealed to the district court. Upon trial before a jury in the district court, proponent introduced his evidence, but the contestants, appellants here, declined to offer any evidence, and moved the court for an instructed verdict in their behalf. The court refused such, motion and instructed a verdict for proponent. The jury returned a verdict in accordance with such instructions, whereupon judgment was rendered admitting the will to probate. From such judgment contestants have appealed. There being no evidence showing or tending to show that proponent, Frank Kveton, exercised any undue influence over John Kveton, Sr., whereby he was induced to execute the instrument offered for probate as the will of said John Kveton, Sr., we conclude that the controlling questions presented by this appeal for our decision, aside from some minor incidental questions, are as follows: First, is the form of the instrument offered for probate such as is required of wills by article 7857, Revised Civil Statutes; that is: (a) Was it in writing? (b) Does the signature of John Kveton, Sr., appear subscribed thereto? (c) Does the signature of two witnesses appear, subscribed thereto? Second, does the undisputed competent and admissible evidence show: (a) That the instrument was signed by the purported testator or by some person by his direction in his presence, and that at the time of such signature John Kveton, Sr., was over the age of 21 years and sound of mind? (b) That the two witnesses who signed said instrument were at the time they signed over 14 years of age, and that they signed said instrument in the presence of John Kveton, Sr.? If these questions are answered in the affirmative, the judgment of the tidal court in admitting the instrument to probate as the will of John Kveton, Sr., must be sustained. That the instrument offered for probate was in writing; that the name of John Kveton, Sr., and of two credible witnesses, appeared on the instrument, as testator and witnesses, respectively, is undisputed; that John Kveton, Sr., at the time the instrument was signed, was of sound mind and over 21 years of age, and that the persons who signed as witnesses were each at such time over 14 years of age, is shown by undisputed, competent, and admissible evidence. We are therefore of the opinion that all of said questions should be answered in the affirmative, and the judgment affirmed. We now return to a consideration of the incidental question presented by appellant. We do not think the court erred in permitting August Iselt, one of the subscribing witnesses, to testify over the objection of contestants that in his opinion. John Kveton, Sr., at the time he signed the will was of sound mind. He had, in connection with the testimony objected to, stated that he had known John Kveton, Sr., for 20 years, that he saw him frequently during his acquaintance with him, that he had seen him only a few months prior to the signing of the will and had seen him a short time thereafter,' and that at such time he appeared to be all right both mentally and physically. The rule that, before a nonexpert witness can be permitted to give his opinion that a person is insane, he must first state the facts upon which he bases his opinion, has, we think, no application to the facts sought to be proven in the present case. [614] Nor do we think that the court erred in admitting the purported will in evidence at the time it was introduced. Evidence showing its execution had been introduced before it was introduced. If, however, we are in error in concluding that the execution of the will had been proven before it was offered in evidence, no reversible error was committed in permitting its introduction out of its regular order. It was admissible in evidence, and the action of the trial court in determining the order in which admissible ■evidence may be introduced will not be held to be reversible error. We agree with the contention of appellants that the court erred in permitting Mrs. Anna Kveton, the surviving wife of John Kveton, Sr., who was a joint maker ■of the will offered for probate, under the provisions of which she was a beneficiary, to give testimony with reference to what was done by her husband and herself in the execution of said will; but, as the execution ■of the will was proven by the undisputed testimony of a competent witness, the admission of the testimony of the witness Anna Kveton would not constitute reversible error. Having reached the conclusion that the ■execution of the will offered for probate was proven by the undisputed testimony of a competent witness, one of the witnesses to the same, and that there was no evidence of undue influence being exercised upon the testator which induced such execution, wé further conclude that the judgment should be .in all things affirmed; and it is so ordered. Affirmed.