I find myself unable to concur in the majority opinion of this Court and, therefore, respectfully hereby declare my dissent thereto.
The jury in this case found from the evidence before them that Daniel Garcia did not have "testamentary capacity" at the time he executed the proffered will.
The question here is, Was there sufficient evidence to support this negative finding?
The burden of proof was unquestionably upon the proponents of the will to show, by a preponderance of the evidence that Daniel Garcia did have such "testamentary capacity." Art. 3348, Vernon's Ann.Civ.Stats.; 44 Tex.Jur. p. 571, § 31. There is no question of preponderance of the evidence involved. Buchanan v. Davis, Tex. Civ. App. 300 S.W. 985, affirmed Tex.Com.App., 12 S.W.2d 978. The question of testamentary capacity is ordinarily one of fact for the jury. Payne v. Chance, Tex. Civ. App. 4 S.W.2d 328.
It would therefore seem that if contestants offered evidence, upon the hearing, amounting to more than a scintilla of evidence, tending to show the want of testamentary capacity on the part of Daniel Garcia, then the jury finding should not be disturbed. Or, to express it differently, a judgment in favor of contestants will not be disturbed where there is evidence of material and substantial value tending to show want of testamentary capacity. Whitney v. Murrie, Tex. Civ. App. 264 S.W. 270.
As I view the evidence in this case, there is evidence of material and substantial value tending to show want of testamentary capacity on the part of Daniel Garcia at the time he executed the alleged will.
Daniel Garcia was an old man, seventy-eight years of age at the time of his death. The will was executed some three years prior to his death, at which time he was weak and feeble. He had been blind for some fifteen years. He had been married twice and both wives and his only son had preceded him in death. The sole remaining member of his family was his daughter, Fidela Garcia de Galindo, and by his purported will he disinherited her.
He falsely believed some one was trying to kill him, that his daughter had mistreated him and had pushed him down. These facts and other instances of a distorted mind caused at least seven witnesses, who knew him intimately for many years, to testify that Daniel Garcia was of unsound mind at the time the will sought to be probated was executed.
I shall not here attempt to review all the testimony given in great detail by the witnesses, as I believe the above statement is sufficient to demonstrate that there was substantial testimony tending to show that Daniel Garcia did not have testamentary capacity to execute a will.
There is sufficient evidence if believed by the jury, and it was evidently so believed, to show that Daniel Garcia was suffering under an insane delusion to the effect that his only daughter had mistreated him and shoved him down, when in *Page 499 truth and in fact she had always treated him with loving kindness and had never mistreated him. It was this insane delusion that prompted him to execute an unnatural will and disinherit his only surviving child. Such an insane delusion in itself has been held to show a lack of testamentary capacity. Stone v. Grainger, Tex. Civ. App. 66 S.W.2d 484.
It is my opinion that the judgment of the trial court should be affirmed. *Page 531