(dissenting)
I am unable to agree with the disposition made of this cause by the majority opinion. I take it there is no disagreement that the declarations of Mrs. Ferguson are hearsay and competent only to prove her state of mind after a prima facie case of undue influence has been made. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138, 1144; Lindley v. Lindley, Tex.Sup., 384 S.W.2d 676, 682 (1964). I propose to demonstrate that the facts in this case do not support such a prima facie case. The evidence, as analyzed below, shows efforts by Mrs. Pearce to exert undue influence on the mind of Mrs. Ferguson, but the evidence also shows such efforts were of no avail.
Undue influence that is sufficient to set aside a will is composed of two elements. First: It must be proven either directly or by circumstances that the undue influence, or its attempted exertion, existed; and second : That such undue influence was effectually exercised, its purpose accomplished and the will thereby produced. Scott v. Townsend, supra, 166 S.W. p. 1144.
“Thus, before a testament may be set aside on the grounds of undue influence the contestant must prove: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence.” Rothermel v. Duncan, Tex.Sup., 369 S.W.2d 917, 922 (1963).
*463Now, keeping in mind the rules of law governing cases such as this, let us examine all the admitted testimony in this record which the majority says tends to show that Mrs. Pearce exerted undue influence upon Mrs. Ferguson and procured the execution of the September 1st will contrary to Mrs. Ferguson’s wishes.
The testimony of the nurses demonstrated that Mrs. Pearce was quarrelsome with Mrs. Ferguson, that Mrs. Pearce objected to the employment and expense of so many nurses, and that Mrs. Pearce attempted to get Mrs. Ferguson to do without so many nurses thus lessening the expense. However, the record shows that although Mrs. Pearce tried to influence Mrs. Ferguson in this regard she was unable to do so. All of Mrs. Pearce’s efforts were apparently fruitless, evinced by the fact that Mrs. Ferguson continued with the same nursing services at presumably the same expense. Thus we are forced to the conclusion that with regard to this item Mrs. Ferguson was not influenced by Mrs. Pearce’s desires.
Mrs. Pearce also tried to reduce the quantity and quality of medicines and prescriptions used by Mrs. Ferguson in treatment of her illness. Her effort here was equally fruitless. Mrs. Ferguson continued to use these same medicines. There is no evidence that Mrs. Pearce’s position, that “a little wine and eggnog” was sufficient medicine, was adopted; Mrs. Ferguson’s will was not overcome.
Mrs. Pearce attempted to substitute her will for Mrs. Ferguson’s regarding Mr. Cross living in the home. Mrs. Pearce tried to force Mrs. Ferguson to have Mr. Cross move out, but Mrs. Ferguson was unmoved. Mrs. Ferguson “talked right up” to Mrs. Pearce. She said that Cross was in the home by invitation, that she wanted him there and that he was going to stay — and he did. This again shows that'Mrs. Fergu- _ son exercised her own will and volition contrary to the efforts and importunities of Mrs. Pearce.
The occurrences described above are relied on by the majority as circumstantial evidence tending to prove that Mrs. Pearce was successful in subverting the will of Mrs. Ferguson in regard to her testamentary disposition ; yet, it tends to prove the opposite. The fact that Mrs. Pearce was unable to control Mrs. Ferguson’s decisions in regard to the matters discussed above tends to prove that she did not control Mrs. Ferguson’s decisions at the time of the execution of the will.
We next come to the preparation of the September 1st will. This testimony, standing alone, might indicate Mrs. Pearce dictated the terms of Article II of this will. This evidence is somewhat similar to that in Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208 (1954), in which the beneficiary under a deed had gone to a lawyer in an adjoining county and had the lawyer prepare a deed for the grantor’s signature. The deed conveyed the property in dispute to the beneficiary, son of the grantor, to the exclusion of the grantor’s other children. The son-grantee informed the lawyer as to the terms of the deed. The father, grantor, was not present at this lawyer’s office at the time the deed was prepared. The son procured the notary and the persons present when the deed was executed, and although not in the hospital room with his father at the time the deed was signed, he was in the “immediate vicinity” of the signing.
This Court reversed the judgment of the Court of Civil Appeals, which had reversed the trial court’s judgment for the son “notwithstanding the verdict.” This Court affirmed the trial court’s judgment on the ground there was no evidence to support the jury’s verdict that the execution of the deed had been procured by undue influence exercised by the grantee-son over the grantor-father. In discussing the fact that the son had the deed prepared and told the attorney the terms and conditions of the deed, this Court said: “There is no direct testimony that the grantor had nothing to do with the preparation of the deed and did not know it had been prepared until it was *464presented to him, but there is testimony from which the jury might reasonably have drawn such an inference.” p. 210-211. Following this the Court said the existence of these circumstances and inferences does not mean they were of such probative force as to support the jury finding of undue influence. The Court further said that it attached no weight to the fact that the grantee-son arranged for the notary and attesting witnesses.
In the case at bar the record shows it was Mrs. Ferguson’s attorney who drew the will of September 1st in accordance with Mrs. Pearce’s statement that “we want” Article II changed so as to leave Mr. Cross only $125.00. Here, as in Curry v. Curry, supra, there is no evidence that Mrs. Ferguson was in ignorance of the new Article II. In fact, the circumstances surrounding the execution of the will show the contrary. The attorney had represented Mrs. Ferguson in preparing the July 21st will. She had called him to discuss a third will after the September 1st will had been executed.
At the execution of the will in question Mrs. Ferguson, her attorney, and Mrs. Pearce met at the bank parking lot, and the attorney explained to Mrs. Ferguson the meaning and effect of Article II of the September 1st will. Again, after the two officers of the bank and the secretary-notary had come to the car occupied by Mrs. Ferguson, the attorney read Article II to Mrs. Ferguson and explained its legal effect. He again in the presence of the subscribing witnesses and notary asked Mrs. Ferguson if she understood the new Article II; if this set forth her wishes; and if she wished to execute the will and have it witnessed and authenticated. Upon her affirmative answer the attorney presented the will to Mrs. Ferguson, and she signed her name at the bottom of each page of the will and at the place provided for her signature, both on the last page of the will and also at the end of the self-proving certificate. The witnesses signed their names in similar fashion, and the notary authenticated the self-proving part of the will.
Sec. 59 of the Probate Code, V.A.T.S., requires that a certificate be executed by the testator and the subscribing witnesses in order that the will may be self-proving. Among other things, the officer taking the self-proving acknowledgment must certify that the testatrix declared to the officer and the witnesses that said instrument was her last will and testament and that she had willingly made and executed it as her free act and deed. The certificate attached to the will of September 1st contained the statutory language. The record is void of any evidence that while Mrs. Ferguson was signing her will, or while the notary was taking her acknowledgment to the self-proving part, Mrs. Ferguson said or did anything to indicate that anyone (including Mrs. Pearce) had influenced her to make this will contrary to her own wishes and desires. She never protested, either by word or act, that she did not understand the provisions of the will or that this was not the way she wanted to dispose of her property. During the time Mrs. Ferguson, the attorney, and the subscribing witnesses and notary were signing the will and the self-proving certificate, Mrs. Pearce was not in the car and was not saying or doing anything to force Mrs. Ferguson to sign these papers. The evidence shows that only the attorney, Mrs. Ferguson and the notary were in the car, and that the attesting witnesses were standing next to the front doors of the car in order that they might affix their signatures as witnesses and notary. Mrs. Pearce was out of the car and walking around in the parking lot near to or “in the immediate vicinity” of the car. No evidence or circumstance is contained in the record to show that Mrs. Pearce was exerting any influence — undue or otherwise — over'the will of Mrs. Ferguson at the time of the execution of the will.
In my opinion, the record herein fails to establish that Mrs. Pearce unduly influenced Mrs. Ferguson in the execution of this will. There is no evidence, circumstantial *465or otherwise, to establish the presence of undue influence. At best, the evidence shows only unsuccessful efforts on the part of Mrs. Pearce to influence the decisions of Mrs. Ferguson. The fact of undue influence not having been established, the declarations of Mrs. Ferguson which tend to show the state of her mind, become of no consequence. I would reverse and render this cause.
SMITH and NORVELL, JJ., join in this dissent.