Greene v. Watts

DIXON, Chief Justice.

I concur in affirming the judgment. Following the death of Lee Oliver in 1954 his cousin Bertha Greene, appellant here, joined by her husband, offered for probate an alleged holographic will which reads as follows:

“8-11-54
“To whom it may consern I Lee Oliver give you the wright if any thing should happen to me to contact Mrs. Bertha Green 2702 Ruth st Houston Texas take out what ever I owe you give the rest to her Lee Oliver.”

The probate of the above instrument was contested by Rufus Watts, Amanda Watts Hayes, and Mary Watts Jones, uncle and aunts of the deceased, and appellees here. The instrument was admitted to probate in the County Court.

In a trial de novo in the District Court in answer to the only question submitted a jury found that Lee Oliver did not have testamentary capacity at the time of the execution of the alleged holographic will. The trial court accordingly entered judgment denying probate of the document.

In their first two points on appeal appellants assert that there was no evidence to justify submission of the issue to the jury, and no evidence of probative force upon which the verdict of the jury could have been based. In her third and fourth points she contends that the verdict of the jury was contrary to the evidence in that the great weight and preponderance of the evidence showed that the deceased did have testamentary capacity at the time in question; and the verdict of the jury is not supported by sufficient evidence since all testimony offered in support of appellees’ contention was based on observations too remote in time from the date of execution of the alleged will. These four points will be considered together.

Hospital records show that Lee Oliver was treated for numerous ailments as an out-patient over a period of about nine years. He was hospitalized for about two and a half months beginning May 14, 1953 and again from October 20, 1954 until October 28, 1954, the day he died in the Veteran’s Hospital at McKinney, Texas.

The records from the Veteran’s Hospital and from Parkland Hospital in Dallas, in connection with his first hospitalization show that he had a paralysis of the left arm, a weakness in his left leg, and on the left side of his face, and that his tongue deviated to the right. His history showed high blood pressure for nine years. The medical diagnosis of July 20, 1953 was:

*424•• “1. 'Hypertensive cardiovascular, disease.
a. Cardiac enlargement
b. Cardiac insufficiency
c. Activity slightly limited
“2. Encephalomalacia, due to thrombosis
“3. Arteriolar nephrosclerosis
a. Axotemia.”

When he was admitted to the hospital the second time on October 20, 1954, he had a partial aphasia with marked mental confusion. He did not know where he was.

The witness Harold Lloyd Pickett, a distant cousin, testified that all his life he had known deceased. Prior to his illness Lee Oliver had been a good business man, dealing at times in South Texas oil leases. Beginning about 1948 he began losing weight. In July 1954 Lee Oliver visited in Houston for two or three weeks, and the witness saw him every day. His left arm and leg were paralyzed and his speech was defective. I quote from his testimony:

“ * * * he would start talking about something, I was drawing or working on, and he would change his thought to something that happened out in the country on the old home place, you know, and about how sick he had been, just like jabber, jabber, jabber, jabber, like that.”

With reference to Lee Oliver’s mental condition, I also quote from Pickett’s testimony :

“Well, as to the soundness of his ■ mind, I wouldn’t say he was crazy, but I would say that he wasn’t himself, he was awfully slow, his reflexes were slow, his speech, his train of thought wouldn’t hold, his original train of thought, what he would start saying and what he would end up saying, he wasn’t the same man.
“Q. He wasn’t the same man. Well, would your opinion be then— . what would your opinion be then?
“A. Well, I wouldn’t say he was of sound mind, although I wouldn’t say ■ he was not, you know totally insane.”

, Another witness was Doctor Ellen Loeb, a specialist in internal medicine and hemo-tology. She was an attending physician at the Veteran’s Hospital at McKinney, Texas during Lee Oliver’s second hospitalization and his last illness. She testified that Lee Oliver had a brain lesion on both the left and right sides of the brain. He had encephalomalacia due to thrombosis, which means that the blood supply was diminished causing a generalized softening of the brain. ■ That condition had commenced at least a year prior to her first seeing the patient on October 20, 1954. He had arteriosclerosis, which is a slowly progressing and degenerating disease. She testified that in her opinion, based on her examination and treatment of Lee Oliver in October 1954, he was not of sound mind when he signed the alleged will of August 11, 1954. We quote her testimony:

“ * * * Do you have an opinion as to the condition of his mind? A. When?
“Q. At August of ’54, that would be two months before you saw him? A. Yes.
“Q. I realize that— A. Yes.
“Q. And what would that opinion be? A. As I say, I don’t think he was of sound mind, that is the best we could establish it. * * *
“Q. Speaking then from all medical probability, is it your opinion then, he being not a person of sound mind, would be a person of unsound mind, is that right? A. Yes.”

In behalf of appellants Naomi Favors testified that Lee Oliver rented a room at her house. She saw him write the alleged holographic will. At the time he owed her some money, but she did not cause him to write the will. She put the instrument in a book and it remained in her possession, though Lee Oliver kept his bank books and personal papers in his room in a drawer. She testified that in her opinion Lee Oliver was of sound.mind when he wrote the will.

*425J. R. Lindquist, banker, testified that Lee Oliver on August 10, 1954 borrowed $96 from the bank, though he could have withdrawn that amount from his account without paying interest. He had known Lee Oliver about ten years. Based upon conversation and observation he was of the opinion that Lee Oliver was a person of sound mind.

An autopsy was made and the report confirmed that Lee Oliver had suffered from the various ailments named in the hospital records.

From the above brief summary it will be seen that the evidence was conflicting on the question of Lee Oliver’s condition. But the evidence offered by contestants is sufficient to support the jury’s verdict that deceased lacked testamentary capacity. Consequently the verdict was binding on the trial court and is binding on this court. 44 Tex.Jur. 571; Walston v. Mabry, Tex.Civ.App., 225 S.W.2d 1014. It is true that neither the witness Pickett nor the witness Doctor Loeb saw deceased on the day he wrote the alleged will. But Pickett saw him a number of times about a month before the execution of the document, and Doctor Loeb saw him daily for several days during a period about two and a half months after its execution. This was not too remote in time to be of probative value. Singleton v. Carmichael, Tex.Civ.App., 305 S.W.2d 379; Hickman v. Hickman, Tex.Civ.App., 244 S.W.2d 681.

I concur in overruling appellants’ first four points on appeal.

In their fifth point on appeal appellants claim that the admission in evidence of the records of the Veterans’ Hos-pital at McKinney, Texas, was in violation of Art. 3731a, Vernon’s Ann.Civ.St. in that copies of such records had not been delivered to appellants a reasonable time before trial, and appellants were unfairly surprised.

I see no merit in appellants’ contention. When the question came up during the trial the attorney for appellees informed the court that these same records had been introduced at the trial in County Court at which time appellants’ counsel had ample opportunity to inspect them. In reply to this statement appellants’ counsel stated that he remembered the 1953 and 1954 hospital reports but did not remember the autopsy report. The court accepted the word of appellants’ counsel but admitted the records in evidence without prejudice to appellants’ right to withdraw their announcement of ready for trial. However the record does not reveal any request for leave to withdraw appellants’ announcement.

The statute does indeed provide that the writing shall be admissible only if a copy has been delivered to the adverse party within a reasonable time before trial, but it expressly qualifies the rule: “ * * * unless in the opinion of the trial court the adverse party has not been unfairly surprised by the failure to deliver such copy.” The court in this instance obviously did not believe that appellants had been unfairly surprised. ' Appellants’ fifth point is properly overruled.

For the reasons above stated I concur in affirming the judgment of the trial court.