Ely v. Reiche

CHADICK, Chief Justice. Although it is somewhat unsatisfactory to do so, reference will be made to the dissenting opinion for the essential facts in this case. Avoiding repetition is to be preferred to increasing the literary output of this court in disposing of the case. It seems settled beyond doubt that the declarations of the Testator, Mrs. McLeod, have no probative weight as proof of the conduct, words, or acts of Edward E. Reiche that are claimed to have exerted an undue influence upon her in making her Will. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138; Self v. Thornton, Tex.Civ.App., 343 S.W.2d 485, N.R.E.; 1 Texas Law of Evidence 666, Sec. 894. Mrs. McLeod’s declarations in that respect are to be disregarded as evidence of undue influence. The record shorn of Mrs. McLeod’s declarations contains no circumstance or evidence of conduct, acts, or statements from which it may be inferred or deduced that appellee Reiche exerted a devious, malign and insidiously compelling pressure to [462] overcome or subvert the free volition of Mrs. McLeod in making' a testamentary-disposition of her property. A practicing physician testified by deposition. Four of the questions propounded to him, and the answers thereto, were offered in evidence by the appellee, and were read to the jury over the objection of the appellant that the questions were leading. The trial court’s error in permitting the questions and answers to be read to the jury, though the questions were leading, are not shown to have amounted to such a denial of the right of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the cause. Of course leading and suggestive questions should be avoided in the interest of orderly procedure and justice, but this error of law does not appear to have had any matérial effect upon the outcome of the case when the record as a whole is considered. , No error requiring a reversal of the judgment is shown. This court must affirm tile trial court judgment, and it is so ordered. FANNING, J., concurs in affirmance. DAVIS, J., dissents.