In this case I desire to indicate the reasons why I concur in overruling the assignments of error presented by the appellants.
1. Under the first assignment, error is assigned to the fifth paragraph of the charge upon the ground that it is upon the weight of the evidence. Paragraphs 5 and 6 of the main charge read:
"(5) Ordinarily less mental capacity is requisite to enable a person to make a will or codicil to a will than is necessary for the same person to make a contract, or to engage in a struggle with another in which he is bartering to secure the best terms, or to engage in an intricate or complex business matter.
"(6) If, at the time of signing of said codicil J. J. Mundy was capable of understanding the nature of the business he was then engaged in, the nature and extent of his property, and the changes as to disposition of his property, effected by said codicil, and the persons to whom he meant to give it, and mode of distributing same among them, at said time, he was possessed of testamentary capacity. If he did not possess such capability at the time of signing the said codicil he did not have testamentary capacity."
At the request of appellants the court gave their special charge No. 7, which reads:
"In order for J. J. Mundy to have had testamentary capacity on October 14, 1919, at the time of making the codicil in question, he must have then had sufficient mind and memory as to have enabled him to comprehend the nature and extent of his property and the persons to whom he desired to give the same. And unless you believe from the evidence that he did have testamentary capacity as above defined, you will answer No to question No. 1 propounded in the court's main charge."
The question of testamentary capacity of the deceased was submitted by the court as follows:
"Question No. 1. Was J. J. Mundy, deceased, at the time he signed the instrument dated the 14th day of October, 1919, the said instrument witnessed by F. E. Hunter and Mrs. Josephine Wilson, possessed of testamentary capacity? Answer Yes or No.
"Answer Yes, if you find the affirmative from a preponderance of the evidence, but if you do not so find answer same No."
In the MeClelland Will Case, 76 Tex. 574, 13 S.W. 543 Justice Henry, in passing upon a charge containing an instruction substantially the same as here complained of, said that the charge was substantially correct. On the other hand, in Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621,36 L.R.A. 64, Justice Brown held that it was not error to refuse a special charge instructing the jury "that the law does not require the same amount of mental capacity to make a valid will as to make an ordinary contract. The only capacity the law requires is that the testatrix shall, at the time of making or executing the will, know or understand what she is about, and to whom she is bequeathing or devising her property."
Appellants assert that Brown v. Mitchell holds that such a charge is upon the weight of the evidence. But such was not the ruling. This is what was said:
"There was no reason to inform the jury that the law required a less amount of capacity to make a will than an ordinary contract. The jury would not be presumed to know what degree of capacity the law required to make a contract, and therefore could not make any proper comparison between the capacity of the testatrix, as shown by the evidence, and that which the law would require to enable her to make a binding contract."
In the case at bar question No. 1, presented to the jury for its determination the issue of testamentary capacity, and left it wholly to the jury to decide without any intimation of the court's opinion upon the question. Paragraph No. 5 does not assume any fact nor intimate the opinion of the court as to the testamentary capacity of the testator, and this is especially true when that paragraph is considered in connection with paragraph 6 and the special charge given at the request of the appellants. The complaint that the charge is upon the weight of the evidence is not well taken. Railway Co. v. Pettis, 69 Tex. 689, 7 S.W. 93; Martin v. Railway Co., 87 Tex. 117, 26 S.W. 1052; Railway Co. v. Ruckman, 49 Tex. Civ. App. 25, 107 S.W. 1158.
2. Under the second assignment it is asserted that paragraph 9 of the charge was erroneous, in that the jury was instructed:
"The burden of proof as to establishing testamentary capacity is upon the proponent of the purported will and codicil. That is, she must establish such capacity by a preponderance of the evidence. A preponderance of the *Page 725 evidence is the greater weight of credible evidence"
— because the law is that such testamentary capacity must be clearly shown. No authority is cited in support of the proposition that testamentary capacity must be "clearly shown." In my opinion the court committed no error in refusing to so charge. In this connection, however, appellants argue that the charge was in violation of article 3271, which says that —
"Before admitting a will to probate, it must be proved to the satisfaction of the court" that the testator "was of sound mind."
No such objection as that was urged against the charge in the court below, and cannot be raised in this court for the first time. Chapter 59, Acts 33d Leg., at its regular session, page 113, and in this connection appellants call our attention to the fact that they requested special charge No. 6, wherein they requested the court to instruct the jury:
"That unless the evidence in this case establishes to your satisfaction that J. J. Mundy had testamentary capacity on October 14, 1919, at the time of making the codicil in question, you will answer No to question No. 1, propounded in the court's main charge."
Refusal of this special charge can avail the appellants nothing here, for the reason that its refusal was not complained of in the motion for a new trial, which constitutes the assignments of error in this court. Chapter 136, Acts 33d Leg. (Reg. Sess.) p. 276 (Vernon's Sayles' Ann.Civ.St. 1914, art. 1612). Nor is the refusal of the charge assigned as error in this court, and under the settled rule the error, if any, in its refusal, is waived.
3. Under the third assignment, the seventh paragraph of the main charge defining undue influence is assailed as erroneous because it is upon the weight of the evidence, argumentative, and confusing. In my opinion it is not subject to the objection urged. But if it is, then, I regard it as harmless, for the reason that an examination of the evidence leads me to the conviction that there was no evidence of undue influence, and no issue with respect thereto should have been submitted.
4. The tenth paragraph of the charge reads:
"As to the issue of undue influence, the burden of proof is upon the contestants. That is, they must establish same by the greater weight of credible evidence."
It is complained of this paragraph in the fourth assignment that it tends to exclude from the consideration of the jury the evidence introduced by proponent tending to show undue influence. If my view is correct that the issue of undue influence should not have been submitted for want of evidence, then the error, if any, in the charge is harmless. But, in any event, no evidence introduced by the proponent in any wise tended to show undue influence. If there was any evidence of undue influence it was all offered by the contestants. Therefore the charge excluded from the consideration of the jury no evidence upon this issue, and was not objectionable. Furthermore, the error, if any, in this paragraph of the charge was cured by special charge No. 8, requested by contestants and given by the court, which reads:
"You are instructed that undue influence may be proved by circumstantial evidence. If you believe from the evidence, after considering all the facts and circumstances in evidence before you, that the codicil of date October 14, 1919, was procured to be executed by undue influence exerted by Harriet Mundy over J. J. Mundy, then you should answer Yes to question No. 2 propounded in the main charge of the court." (Italics mine.)
5. The fifth, sixth, and seventh assignments relate to the question of whether or not the codicil was attested by the subscribing witnesses thereto in the presence of the testator. For the reasons indicated in Justice WALTHALL'S opinion no issue in this respect was raised by the evidence.
6. The eighth assignment complains of the action of the court in admitting in evidence that part of the testimony of Josephine Wilson taken in the county court and there reduced to writing, wherein she testified that at the time of making the codicil the testator, John J. Mundy, was of disposing mind and memory; the particular evidence objected to being the words "and disposing." For the reasons stated by Justice WALTHALL the certified copy of the record of Mrs. Wilson's testimony taken in the county court was properly admissible under articles 3273-3275, Rev. Stat. And in any event the matter presents no reversible error, because upon the trial Mrs. Wilson testified fully concerning the mental condition of the testator at the time the codicil was executed.
7. As to the ninth assignment, I concur in the view of Justice WALTHALL that the question propounded to Dr. Crouse on cross-examination, by appellants relative to the amount of his charge against the estate of J. J. Mundy, deceased, for operating upon him in his last illness, was wholly irrelevant and immaterial to any issue in the case.
8. Appellants requested charges instructing the jury at length with reference to the law of community and separate property, and that neither the will nor the codicil thereto undertook to dispose of Mrs. Mundy's half of the community estate, and no matter whether the codicil was probated or not she would in law, in any event, and independently of the will or codicil, own and be entitled *Page 726 to her half of the community estate after the payment of community debts.
Under the tenth, eleventh, twelfth, and thirteenth assignments complaint is made of the failure to give these special charges and of the omission of the court in its general charge to charge upon these matters. I concur in Justice WALTHALL'S view that these charges were foreign to the issues of fact in the case; that they would have been misleading, and would probably have been construed by the jury as conferring upon them the privilege of determining how the testator should have divided his property and whether he had made a fair and proper disposition thereof.
9. I concur in the view of Justice WALTHALL that the fourteenth assignment complaining of the argument to the jury made by one of counsel for proponent presents no error.
10. I concur in the disposition made by Justice WALTHALL of the fifteenth assignment. The matter is unimportant. The county court probated the original will of October 8th, and the contestants are not complaining thereof; so it makes no difference if the district court unnecessarily entered its order again probating the same.
For the reasons indicated, I concur in the affirmance of this case. Chief Justice HARPER also concurs in this additional opinion.