Johnson's Estate v. Poindexter

PANNIDL, C. J. The purpose of this suit is the probate of the last will and testament of Mary Johnson. On the trial in the district court in response to a special verdict to the effect 'that, at the time of the execution of the will, the testatrix, was wanting in testamentary capacity and that the execution of the will had been procured by- undue influence practiced upon the said deceased by her son Will Johnson, judgment was entered refusing the application to probate the will. The judgment of the trial court is attacked on the ground that the verdict of the jury is contrary to the evidence. Reversible error is also asserted on account of the admission in evidence of the questionnaire executed by the proponent Will Johnson during the war between the United States and Germany. It is unnecessary to discuss the proposition presented by appellant asserting that the jury’s finding of want of testamentary capacity was not supported by the testimony, inasmuch as the majority of this court have concluded that the finding of undue influence finds legal support in the testimony. Inasmuch as our brother LITTDER, Associate Justice, is unable to agree to the conclusion stated herein, it may not be inappropriate to say that if the question of want of testamentary capacity was the only issue to be decided, we would have great difficulty in reaching the conclusion that the testatrix was wanting in testamentary capacity at the time she executed -the will. The facts, briefly stated, are that the decedent, Mary Johnson, was the surviving wife of Tom Johnson. A few months after the death of Tom Johnson, his two married daughters, Mrs. Poindexter and Mrs. Likens, contestants here, demanded their share of their father’s estate and fileil suit for partition thereof, and in this suit a partition was had. This occurred in December, 1915. Contestants’ testimony is to the effect that their action in bringing this suit for partition was not opposed by the testatrix. It was shown that the proponent, Will Johnson, was violently opposed to any division of his father’s estate. Contestants’ evidence showed that the same friendly relation existed between them and their mother before and after the suit as had always existed, except when the proponent, Will Johnson, was present his mother would become embarrassed and uneasy and refuse to talk; that Mrs. Johnson was willing to a partition of the property when she was alone with contestants or out of the presence of proponent, but when proponent was in her presence she would agree with him. After the death of his father, the proponent, Will Johnson, continued to live with and took charge of his mother’s business and the entire estate and managed it and controlled it practically to the same extent that his father had done during his lifetime, and that the deceased was at all times under his influence and acceded to his wishes. During the negotiations looking to a partition of the property, Will Johnson never did agree to a division and influenced his brother to oppose it, as well as his mother, and stated to contestants that he wanted this property to be kept together and always in the Johnson name. After the division, proponent, Will Johnson, stated to one of the contestants, his sister, that he wanted her to make a will so that her part of the estate woulfl come back to the Johnson es *577 tate if slie should die. This contestant refused to do, and proponent, Will Johnson, then told her that he would see that she never would get a thing; that he would see that she never got another- damn cent. Shortly thereafter and on the 21st of February, 1916, the will in controversy was executed. The testatrix went alone to the office of her attorney, explaining to her attorney how she desired her will to be drawn, and the will was drawn according to her directions and executed by her in presence of witnesses selected by her. The will bequeathed all her property to her four sons, share and share alike, with the provision that at the death of any of her sons the share or shares of those dying should go to the survivors. Her two daughters were excluded. Prior to the death of Mrs. Johnson, one of her sons died leaving two small children, and this will denies to them the right to participate in her estate. Mrs. Johnson died on the 12th day of May, 1925, over nine years after the execution of this will. Testimony was also before the jury jto the effect that the testatrix’s mind prior to the execution of the will had been to some extent weakened by sickness and trouble, rendering her susceptible to be influenced by others. After the death of Mrs. Johnson, during a conversation between one of the contestants, Mrs. Likens, and the proponent, Will Johnson, the contestant stated to Will Johnson that the will which had been shown to her was not her mother’s will, but was proponent’s will, to which Will Johnson replied that he did not have anything more to do with the will than he wanted to have or ought to have; that it was his business to attend to it. The testimony submitted by proponent showed that there was no undue influence exercised by him over his mother, but that his mother left contestants out of the will because she was angry with them for having filed the suit for partition against her wishes. In considering the sufficiency of the testimony to support the verdict of the jury, we are required by the rules to reject all the testimony contrary to the verdict and to consider only the testimony favorable thereto. The effect of the jury verdict is to affirm the truthfulness of all the testimony submitted by' contestants tending to prove the exercise of undue influence by proponent. When that testimony alone is considered, its sufficiency would seem to be apparent. Clark v. Briley (Tex. Civ. App.) 193 S. W. 419; Degenhardt v. Joplin et al (Tex. Civ. App.) 239 S. W. 692; Rounds v. Coleman (Tex. Civ. App.) 189 S. W. 1088; Leahy v. Timón (Tex. Civ. App.) 204 S. W. 1033; Goodloe v. Goodloe, 47 Tex. Civ. App. 493, 105 S. W. 533; Pendell v. Apodaca et al. (Tex. Civ. App.) 221 S. W. 682. Appellant contends that no direct evidence of undue influence has been submitted, and the evidence showing that Mrs. Johnson lived for over nine years after she executed the will, and therefore had full opportunity to revoke it if it did not represent her wishes, the jury could not find from circumstances that undue influence was exercised. This contention cannot be upheld under the authorities cited, as well as a very recent decision of the Supreme Court in the case of Craycroft v. Crawford (Tex. Com. App.) 285 S. W. 275. In that case the Supreme Court adopted the opinion of the Commission of Appeals, elaborately reviewing testimony, which we think is no stronger than that in the case at bar, and there held that such evidence raised the issue of undue influence. The wishes and intentions of Will Johnson, as expressed by him before the will was executed, are accurately reflected in the paper offered for probate. In it the property is kept in the Johnson name to the exclusion of his brothers children, and his threat that his sisters would not receive an “emphasized” cent finds full fruition. The circumstances as well as his admission to his sister that it was his business' to attend to the malting of the will, and that he did not have any more to do with it than he ought to have had, authorized the jury to point to Will Johnson as the real author of the will. It will not be necessary to discuss appellant’s criticism of the charge of the court in defining “testamentary capacity.” If the charge was incorrect, it could not affect the disposition of this appeal, as the will could not be probated, even though the testatrix was of sound mind, if undue influence was practiced upon her. The only other complaint necessary to notice relates to. the testimony of the proponent, Will Johnson, who was required to testify that during the year 1917, while the United States was at war with Germany, and when the government, was examining those in the draft age, Will Johnson in his questionnaire stated that he was the sole manager of the Johnson ranch in Callahan county, Tex., and that the same was made in effect and for the purpose of getting deferred classification in the selective draft. This question has given us considerable difficulty, as that part of proponent’s testimony that he made the statements that he was sole manager of Johnson ranch for the purpose of procuring deferred classification and being released from service in the army was not admissible and was very inflammatory and should not have been permitted to go to the jury. Under the rules governing the disposition of appeals for the Courts of Civil Appeals, we are without authority to reverse on account of the erroneous admission of the testimony referred to, on account of the fact that that part of said testimony to the effect that said Will Johnson stated in his questionnaire that he was sole manager *578 of the Johnson ranch was admissible, and the hill of exception shows that the testimony was objected to as a whole and no specific objection was lodged to the inadmissible part of the testimony as shown in the bill of exception. It seems to be the ■settled rule that incases where undue influence is an'issue, the relationship of the one charged with practicing undue influence with the testator is admissible. Willis Millican et al. v. John Millican et al., 24 Tex. 426; Beville v. Jones, 74 Tex. 148, 11 S. W. 1128. In Clark v. Briley (Tex. Civ. App.) 193 S. W. 419, it was specifically held that where the testator lived for many years after the execution of a will, the relation' between the testator and the one charged to have procured the execution of the will by undue influence could be shown to have continued after the execution of the will in order for the jury to determine the issue. The reason is that if all influence was shown to have been removed- and the will was not changed, that would be a strong circumstance tending to' show that no such influence was exercised in the first instance; but if the association of the one having a controlling influence over the testator was shown to continue this would be a material circumstance. The exercise of influence over the testator after the execution of the will was discussed anu considered material in the case of Craycroft v. Crawford, supra. Therefore evidence that after the execution of the will proponent, Johnson, was permitted by his mother to have the sole management of her property, was a relevant and material inquiry. The statement of facts discloses that while on the witness stand the proponent, Johnson, denied that he was the sole manager and had the control of his mother’s property. It then became material to show that he had previously stated to the contrary. The bill of exceptions presenting this matter shows that the objection taken was as to the testimony as a whole including that part wherein he stated that he was the sole manager of the Johnson ranch, and no specific objection was urged to the inadmissible part of the testimony offered. It is well settled that a bill of exception which shows, a general objection to testimony, part of which is admissible and part not admissible, presents nothing for review in an appellate court. G. H. & S. A. Ry. Co. v. Gormley et al., 91 Tex. 393. 43 S. W. 877, 66 Am. St. Rep. 894; G. H. & S. A. Ry. Co. v. Burnett et al. (Tex. Civ. App.) 42 S. W. 314; Jamison v. Dooley, 98 Tex. 206, 82 S. W. 780; P. & N. T. R. Co. v. Evans-Snyder-Buel Co., 100 Tex. 190, 97 S. W. 466. Finding no reversible error in the record, judgment of the trial court is affirmed. RIDGELL, J., concurs. LITTLER, J., dissents.