While a dissent from a judgment of the Court of Civil Appeals reversing the trial court's judgment as being against the weight of the evidence may be futile, since the Supreme Court has no appellate jurisdiction over such determination (Owens v. Tedford, 114 Tex. 390, 269 S.W. 418), the statutory requirement concerning it seems nevertheless unabated (R.S. art. 1852).
Whatever may be the rule in other jurisdictions, in Texas the course of descent and distribution of one's property at his death may not be changed by will, unless he is at the time of making it 21 years old, or has been lawfully married, and is also of sound mind. Revised Statutes, art. 8281.
Sound mind, as used in this statute, means that he must then have had the capacity (1) of understanding the matter of the business he was engaged in, the nature and extent of his property, the persons to whom he meant to bequeath it, as well as those dependent upon his bounty, and the mode of distribution among them; (2) that he must have had memory sufficient to collect in his mind the *Page 952 elements of the business to be transacted, to hold them long enough to perceive at least their obvious relations to each other, and to be able to form a reasonable judgment as to them. Bell v. Blackwell (Tex.Com.App.)283 S.W. 765, Morris v. Morris (Tex.Com.App.) 279 S.W. 806, Prather v. McClelland, 76 Tex. 574, 13 S.W. 543.
To me it seems a fiction to assume that the higher courts of the land — through the supposed trend of judicial decision or otherwise — have in fact come to be the special guardian of the rights of the aged and infirm, with particular reference to the preservation of their power of testamentary disposition. No greater duty rests upon them to protect infirm age than robust youth in the enjoyment by each of all its just rights, and discrimination because of infirmity or strength in favor of or against either would be equally indefensible. The public authority, whether exercised from the jury box or the appellate bench, should always be just before it is generous, "rendering unto Cæsar the things which be Cæsar's, and unto God the things which be God's." If, therefore, there be a "tendency of juries to break, and a fondness of courts to sustain, wills," as appellant's brief here intimates, the privilege of throwing off such trappings and of determining this sort of causes, as all others, upon the law and evidence alone, is open to both agencies. Certain it is that no such proneness, if it anywhere exists, should be taken into consideration in determining whether or not this judgment should be upheld.
In will contests, just as in other cases, the jury are the exclusive judges of the credibility of the witnesses and the weight to be given their testimony. Their verdict, therefore, upon a simple question of fact, to be set at naught upon appeal, must be so against the great weight and preponderance of the evidence as a whole — so shocking to the conscience of the appellate tribunal as a misexercise of the plenary prerogative thus vested in the triers of fact — as to be clearly wrong, hence not to be permitted to stand as a reasonably fair deduction, rationally arrived at, from the testimony. Choate v. Railway,90 Tex. at p. 88, 36 S.W. 247, 37 S.W. 319; Id., 91 Tex. 406, 44 S.W. 69.
No such reaction from a careful study of the statement of facts accompanying this record affects this member of the reviewing court. On the contrary, it seems to him that there was only such conflict in the testimony as to whether or not old Mr. McCannon had testamentary capacity at the time of signing the purported will as came within the jury's exclusive province, and that the evidence was sufficient to have supported a verdict either way.
The weight of the evidence as an entirety does not necessarily dip upon the side of the greater number of witnesses, even though there be a cloud of them, but upon that of those exhibiting the more intimate and competent knowledge of the testator's mental condition at the time involved, and therefore speaking with the greater probative value.
With that consideration in mind, the features standing out from all the evidence here with compelling force, it seems to me, are the indisputable facts: (1) That the witnesses who had been, during the several months immediately preceding the signing of this paper, in the most intimate relations with him, and consequently in best position to express admissible opinions, all testified that the old gentleman was not then of sound mind, as those terms have been defined by our courts in the cases cited, these being Dr. T. C. Wooley, Dr. G. H. Reed, the professional nurse, Miss Ethel Bolin, and Mr. and Mrs. James Tartar; (2) that Mr. McCannon, while visiting at the home of his son, Dan McCannon, in Beaumont, Tex., on July 16, 1924, just 10 days before the date of this proffered will, suffered such a complete collapse or breakdown in both body and mind that his attending physician classed him as an "irretrievable derelict — pardon the expression, his salvage not worth undertaking, either for his sake or the family's, from a medical standpoint"; (3) that on the next day after his return from Beaumont to Houston he was found to be so far gone from the hopelessly progressive senility and senile gangrene that 3 months later caused his death, that, in the judgment of his regular family physician, he was then only about equal in mental capacity to a child of from 6 to 12 years old.
Only a brief resume of the evidence supporting these findings will be made.
Mr. and Mrs. Tartar had for more than 10 years before his death been intimate friends of old Mr. McCannon, having for about 3 years of that time lived in the same home with, and kept house for, him at the little town of Katy before he moved to Houston. During that 3-year period he fell from a train and suffered a rupture, of which he was never cured; Mrs. Tartar having nursed him following that fall. After he moved to Houston, he would frequently revisit Katy, having left business and property interests there, and never did so without staying at the home of the Tartars on such occasions, eating his meals there, discussing his business with them, and otherwise giving them continuing occasion to observe his conversation, conduct, and general condition. The last of these visits to them occurred in April, 1924, 3 months before the date of this rejected will; what then occurred and the resulting impression made upon the husband and wife being thus in substance testified to by them:
Mr. Tartar:
"He came up there, and I went with him up to his house, and we measured some window lights, and he told me to have the house repaired and fixed up, and he came back to my house, and ate supper there and I took him to the train, and I did not see him any more. * * * I have stated that I observed Mr. McCannon on different occasions. The last time he came to my house he did not seem to be the same way. He did not act the way he did before. It seemed that he was worried. He would start out on a conversation, talking, and it seemed like that he was worried in some way, but I did not ask him what it was. He would start a conversation and talk, and then start something else. When I saw Mr. McCannon up there at Katy on that occasion in April, I don't think the old man was right to my best knowledge; I don't believe the old gentleman was right." *Page 953
Mrs. Tartar:
"He stayed all night with us on the occasion of that visit, and I heard him talking with my husband there that night. I had occasion to notice Mr. McCannon's conduct and what he did and said. It seemed to me at that time that Mr. McCannon was losing his mind. He acted more like a child that was not real bright. I heard him carrying on a conversation with my husband. * * * The last time I saw Mr. McCannon his conversation did not run in the same manner that it did prior to that time. It seemed like his mind was wandering; it was not right some way or other; and he could not carry on a straight conversation and carry out his sentences. I noticed that that night while he was out at our house. From my observation of Mr. McCannon from the first time I ever saw him (1913) down to the last time I saw him (April, 1924) I would say that his mind was not sound the last time I saw him. * * * On this last visit Mr. McCannon made to Katy he came out there on the train by himself. My husband works there at the depot, and he met Mr. McCannon and brought him up to the house. The train gets out to Katy at 8:45 in the morning, and Mr. McCannon came right on up to my house from the train, and he stayed there, and we had dinner, and then I went with him to his house, which he has there in Katy. There was no one in the house, and I went over there to the place with him. I did notice something unusual about Mr. McCannon's condition when he was eating dinner there that day; he just didn't seem like he was right. He would ask for things, and I would pass them to him, and he would say that he did not want it. He would ask for some dish to be passed to him, and every time I would pass it to him he would say, `I don't care for it.' I was with Mr. McCannon all of that afternoon. We did not stay there at the house and talk, but I went with him to see if he could rent his place out. My husband was with us; we were all together. Mr. McCannon wanted his house repaired, and that is when we went up there. * * * Mr McCannon was able to get along by himself, but he seemed like he was weak. Of course, a man as old as Mr. McCannon would not be as vigorous as a younger person."
Dr. Reed, engaged in the general practice of medicine, was the family physician in the home of Dan McCannon at Beaumont, where the latter's father was so stricken. The purport and final meaning of his testimony as a whole is reflected in these quotations from it:
"I saw the late D. S. McCannon * * July 16th and July 17, 1924. * * * When I went to see Mr. D. S. McCannon, I found the old gentleman in what would be termed a collapse. His extremities were cold; he was not unconscious, but he was complaining bitterly of his feet and body being extremely cold. His pulse was rapid and weak, and he was trembling, hardly a rigor, not like a shaking chill, but a sort of tremble, a condition which is amply described `collapse.' * * * When I went back to see Mr. McCannon on the second day, his extremities were somewhat warmer, and he was not complaining so bitterly of the cold; he complained more of the pain, a sense of numbness in his limbs, than he did of the cold itself. As I recall, there was a manifest strength in his heart action; while pitifully weak, was stronger than it was the day before. The appearance of collapse was not near so marked, yet his mind seemed wandering. He did not recall my having seen him the previous day, and we had to go over the history of the occurrences of the previous day. I say he did not recall — he did recall that some one had told him he might have some alcoholic stimulants, and he distinctly referred to that, and said he thought he ought to have been having it, but he insisted that I had not seen him the day before. I was a complete stranger to him. * * * I made a second examination of Mr. McCannon's physical condition on the second day when we went out there.
"I did not make a diagnosis of Mr. McCannon's case; that is, not by specific name of disease. I thought of him as being an old man, worn out, and I did not expect him to survive very many days. Mrs. MCCannon called me out to see Mr. D. S. McCannon. I made up my mind as to what had caused the condition that I saw when I examined Mr. McCannon on these two days. In my opinion, old age was the cause of the condition in which I found him. His limbs were cold because of the lowered vitality, which comes to all of us. As the years pass, our vital functions are lessened, circulatory as well as every other function, and that which tax us ever so slightly in early life, or in middle life, to the aged becomes a practical exertion. * * *
"After having found Mr. McCannon in the prostrated condition in which I found him, it is my judgment that his mind would not reach a stage where it would be any better than it was then. I thought he was going to die any moment. I did not think he would live more than a few weeks, and I was surprised to hear that he lived until October. Taking into consideration my observation of Mr. McCannon, hearing him talk, and the questions he asked, and the physical examination I made of him on two different occasions, it is my opinion that he was not of a sound mind when I saw him.
"After I had examined D. S. McCannon, I thought his time was very limited. I would not have been surprised to have found that he was dead on the morning after I visited him the first time, and, after seeing him the next day, I classed him as a derelict, pardon the expression, his salvage was not worth undertaking, either for his sake or the family's, from a medical standpoint. I do not mean to be cold-blooded, but I did not feel like there was a chance for it. I thought his time was due in possibly a few days, or weeks, or not many months. Naturally the life and death forces will hang by a thread for days, weeks, and months. I considered he was a dead man, but he just had not quit breathing. * * *
"I do mean to say that on the first day I saw Mr. McCannon, although he was in the condition I stated, he was conscious. I could not see any special improvement in his mental condition the next day, and I don't know as he was any worse; he was still conscious. * * * He seemed to have no clear conception of what was being done. He was just like a child in a sense that wanted a thing. It was done, and he knew it was done through his consciousness, but he did not take into mental *Page 954 consideration that this had happened to him. * * * I conversed with Mr. McCannon the second day, and he would answer my questions in a measure, wanderingly. * * * The rest of it is nebulous, in the sense that there are no specific details in my mind, except what created the fact that he did not really know what he was doing and what was going on around him. I just classed him as a man who was in his second childhood, in his dotage, and I recalled that his conversation with me would just about bear out that theory. * * * This matter of a man being childish is something that sets in gradually; it does not occur overnight. * * * It is possible that this old man could have in the preceding April gotten on a train by himself and gone to Katy unaccompanied, and go to a man's house and hire a man to go with him and look at a rent house and discuss with him the matter of having the windows fixed. He might have done it the day before. I would hate to risk him, but he might have done it apparently in a satisfactory manner. * * * It would impress me that a man whose mental vigor had become so greatly reduced as that of the patient under discussion could never recover to such an extent that his actions could be relied on."
The nurse referred to, Miss Bolin, and another registered nurse, Miss Fanny McBride, both lived in the Dan McCannon home, both made examinations of, and ministered to, his father after his collapse there, Miss Bolin seeing him every day until he left for Houston. She testified:
"Mr. McCannon must have remained in Beaumont something like 3 or 4 weeks on the trip he made over there in July, 1924, I think it was close to 4 weeks. I had occasion to see Mr. McCannon and talk with him from time to time during the time he was there. I talked to Mr. McCannon about a little of everything. He was there so long, and I used to wait on him quite a bit, when Mrs. McCannon was busy, bringing him drinks and things like that, and I had occasion to talk to him quite a good deal. I had occasion to observe his conduct and what he said and his mannerisms, etc., during that time. Mr. McCannon wrote letters quite often while he was visiting over there. He used to start to write a letter; he would start in the morning right after breakfast, and then write all morning, and every once in a while want Mrs. McCannon and myself, one, to read what he had written so far, because he would forget what he had written, and he would ask us to read it to him so he would know what he had so he could finish his letter, and it would take him nearly all day to write it, and then he would be completely exhausted, and he would go in and go to sleep afterwards. That was before he had the stroke. The letters Mr. McCannon wrote would not be long, but it would take him a long time to write them. From what Mr. McCannon had to say, and from my observations there, and my experience as a nurse, I would say that during the time Mr. McCannon remained in Beaumont he was more of an unsound than a sound mind. He was very, very childish, and forgetful, and after the stroke he seemed more so than before. I do not remember what date it was that Mr. McCannon left there, but I do remember when he left they took him to the station in a taxi, and Mr. Dan McCannon went with him."
Miss McBride was present when the stroke occurred, helped put the patient to bed, and remained for some hours thereafter in attendance upon him. She testified about his great physical infirmities, and, although apparently not interrogated as to his mental capacity, made this statement concerning the impression she received about him before he was stricken:
"I did not have occasion to talk to Mr. McCannon but very little. I heard what he had to say, and I saw him sitting out there on the front porch, writing letters, and he would forget at times, and he would have to stop and study until he could call back his memory, or some one would have to help him."
Last and well-nigh conclusive of the whole matter was the evidence given by Dr. T. C. Wooley, eminent physician and superintendent of hygiene for the Houston city school system; for the six years immediately preceding his death, not only had he been the regular physician to Mr. McCannon, serving him as such throughout his last illness, but his next door neighbor and intimate friend as well. A few excerpts from his testimony will suffice:
"Mr. McCannon went from my place to Beaumont. * * * When he stayed there at my house, if he wanted to go to the post office and see about his pension, if I suggested that he not go, he did not go, or suggested that go again, he went, and so forth. * * * Mr. McCannon was perfectly willing to take my suggestions. What I am trying to say is the man was childish to that extent that he took suggestions from me or my wife what to do. I would say that he had the mentality of a child of anywhere from 6 to 10 or 12 years old. * * * I am not sure as to the time I examined Mr. McCannon after he came back from Beaumont. I am not sure whether it was that same day or the next; it was one or the other, and I found those red spots at that time. * * * He was suffering from senile gangrene. When a man begins to suffer from senility, from a doctor's standpoint, is when he commences to be incompetent physically and mentally, and every other way he becomes childish. That is the best way I know to express it; when a man is suffering from senility, he becomes childish. When I saw Mr. McCannon after he came back from Beaumont, I would say that he was childish. * * * I would say that he had the mentality of a child of anywhere from 6 to 10 or 12 years old. In addition to that, he was suffering from this senile gangrene, which resulted in his death. * * * I said Mr. McCannon's case was progressive, which means that it started in and kept on until he died. * * * I don't think there was any interruption in it. Senile gangrene is not a disease of the brain; it is the nerves. * * * My opinion is this: That the old man, when he first began to suffer with senile gengrene, that be did not remember and would not remember what I had told him the day before, and I do not lay that to gangrene; I lay that to the senility."
The testimony of this group of witnesses, looked at as an entirety, as the jury were *Page 955 privileged to do, was so corroborated and buttressed by coincident and attending circumstances severally mentioned by them in detailing it from the stand as to make its probative force clear and convincing; it would, perhaps, be an impossible task to disassociate and recapitulate them here, and even the attempt to do it is unnecessary, since they run through it all like a silver lining to the darkest cloud.
Neither is it essential, or even appropriate, that invidious comparisons be made between this evidence and that supporting appellant's contention, since the dissent, conceding the latter to have been sufficient to support a verdict, only affirms that such was the plain effect of that here reviewed also.
Still, by way of emphasis of that position, attention may be directed to these differences: (1) None of appellant's witnesses had lived in the same house with old Mr. McCannon up to the time he signed this instrument; (2) none of them as trained nurses had then taken care of him as such; and (3) only one of them, the venerable Dr. Olive, himself 89 years old, had ever been a physician, and he had retired from practice many years before that time — even he gave his opinion only as a layman, deferring to Dr. Wooley as the attending physician; hence (4) there was no medical testimony contrary to that herein quoted from, although Dr. Olive himself stated that the family already "had had five or six physicians" when he saw the old man; (5) many of appellant's witnesses were casual church, bank, or business acquaintances of her husband, who had sustained only occasional and merely public relations with him; (6) the testimony of Mr. Cole, her able and high-class attorney, who drew the proffered will, was greatly weakened by the admitted fact that, when he took the data for the preparation of it in response to her telephone call, "it had been 6 or 8 months, maybe a year," since he had before seen the old man at all. Others of these witnesses were unable to say they had seen Mr. McCannon after his collapse at Beaumont, among them his bankers, Messrs. A. B. Jones and W. L. Dyer.
Surely the testimony herein digested does not reflect "the mere idiosyncrasies or temporary memory lapses to which old people often fall heir," but considering its high source, and that it was received without an imputation of partiality, unfairness, or self-interest on the part of any witness, did it not rather entitle the jury, in the exercise of their peculiar province, to find that the sana mens in sano corpore did not in either particular exist in old Mr. McCannon; that extreme age, worn-out bodily functions, and insidious disease had left nothing to longer support it, and that the fine old man — for 85 years the possessor of more than usual vigor of both mind and body — had at last fallen a victim to senile dementia, and become one of those "whose hands have survived their heads; who still have strength enough to write a name or make a mark, though the capacity of disposing is dead?"
It seems to me that it did; sitting in the quiet of these appellate chambers, far removed from the scene, from contact with the people who participated, and with nothing but the pulseless record of this trial to aid me, I cannot feel myself in equal position with the jury to pass upon this fact issue.
The evidence indisputably shows that the making of old Mr. McCannon's will was no child's play, nor even the work of one having only the mentality commensurate with "from 6 to 12 years of age." There were shown to be as many as three different estates involved, those between decedent and his first and second wives and his own individually growing out of property lying in as many different states, eight adult children by his first wife, three grandchildren, and his second wife being left surviving him.
The natural course for the post mortem disposition of one's property has been crystalized by the public policy of the state into our statute of descent and distribution (Revised Statutes of 1925, title 48) so strongly that, however well recognized the concurrently running parallel right of diverting that current by will, the courts will hold that not to have been effected if the testator's language is so vague and uncertain as to obscure his meaning. Dubois v. House (Tex.Civ.App.) 294 S.W. 935, writ of error refused. With even more zealousy will they see that no such diversion is accomplished through the act of one not satisfactorily shown to have been in his senses at the time. Schouler on Wills, par. 139.
This was an orderly trial, with not a suggestion of prejudice or other improper conduct of judge or jury appearing, there being merely two groups of witnesses of unequal numbers holding different opinions concerning the enfeebled old man's mentality, with the jury choosing between them. In the circumstances, I can find no warrant for setting that choice aside.
Neither do I think there was reversible error in the exclusion of the receipts, check, and deed upon which in part the reversal is ordered. The controlling issue in the case was the testamentary capacity, or the lack of it, of the decedent at the very moment of signing this instrument, and therefore the only possible theory, it seems to me, upon which these papers could have been admissible, was to show whether or not he then had such capacity; but they were too far removed in time, condition, circumstances, and relevancy to reasonably have any probative force upon that inquiry. Some of them were then more than 9 — none less than 5 — years old, all related to isolated and unexplained transactions had at a time when the old man was admittedly sound in both body and mind. The proffered will was neither ambiguous in terms, being rather couched in the clearly flowing language of appellant's counsel, nor did it make any reference to advancements. It was therefore to be expounded only, not explained, by the injection of remote and extraneous matters. Brown v. Mitchell, 87 Tex. 140, 26 S.W. 1059.
In conclusion, while I think the evidence also raised the issue of undue influence upon appellant's part, the appellees, in the state of the record on appeal, are neither entitled to nor asking a reversal on that account.
Believing that substantial justice was shown to have been applied in the judgment rendered below, I earnestly protest against its being reversed. *Page 956