Guest v. Guest

235 S.W.2d 710

• Court: Court of Appeals of Texas
• Decided: December 22, 1950
• Docket: 15171
• Status: Published

Opinions

SPEER, Justice.

George M. Guest, of the Negro race, age about 85 or 86, died in Lamar County, Texas, on November 1, 1948. On June 3, 1948, he purportedly executed a joint will with his second wife, Adlanta Guest, to whom he had been married fifty-three years. By the terms of the instrument his named wife was nominated as independent executrix. Shortly after the testator’s death, the wife made application to the probate court to have the will admitted to probate and for record. There is nO' question raised going to the sufficiency of the application.

Robert Guest, a son of testator by a former marriage, which had been dissolved by divorce many years ago, filed and vigorously prosecuted a contest of the proposed will. Grounds relied upon consisted of eleven typewritten pages of very elaborate allegations, which for brevity may be summarized by saying he raised the questions of (1) want of testamentary capacity; (2) forgery; (3) improper or illegal execution of the will; (4) undue influence; and (5) fraud.

We shall refer to the parties as proponent and contestant as is most frequently done in the record.

The will was admitted to probate and contestant appealed to the district court, where trial was had to a jury on special issues. Upon what the court found to' be uncontroverted facts and the verdict of the jury, judgment was entered for probate of the will. The order was certified to the probate court for observance. Contestant has appealed on his affidavit of inability to furnish bond.

The record and briefs are voluminous. The statement of facts alone contains more than one thousand pages, much of which is in narrative form. To analyze all would require an opinion of unusual length and would prove of little benefit to the bench and bar. We shall content ourselves to dispose of this appeal in a manner which in some instances will only be understood by those who participated in the trial.

■ The proposed will covers more, than seven pages in the record. It is sufficient for us to say that it was carefully and meticulously drafted by an attorney and disposed of an estate estimated by some witnesses of a value between $100,000 and $150, 000. There are three personal bequests of $1,000 each and one for $500. There is a bequest of $10,000 to “First Circle of The King’s Daughters of Paris, Texas,” for the purpose of purchasing a site and erecting a building as a day nursery for Negro children, to be known as the “Geo. M. and Adlanta L. Guest Day Nursery.” A life estate in the remainder is given to the wife Adlanta, with privileges of sale and disposition of same by her. There is a declaration that neither the husband nor wife had any separate property but that all property was community. After the life estate to the wife is terminated, a trust was created, naming a local bank as trustee with specific instructions as to its duties and obligations to handle the residue of the estate and to pay to “The King’s Daughters,” a corporation, or-its successors, the net revenue derived by the trustee from the estate and directing The King’s Daughters to enlarge, equip and maintain said nursery therefrom.

The court submitted special issues with explanatory definitions, from which the jury found that (1) the propounded will was signed by testator or some person under his direction and in his presence; the first issue was followed by this explanation : “In connection with this question you are instructed that a will can be signed by mark made by the maker of the will or by his touching the instrument of writing as the mark is made.” (2) George M. Guest had testamentary capacity, as that term is defined by the court, at the time the propounded instrument was executed. In connection with the second issue the court gave this explanation: “In answering Question No. 2, you are charged in connection with the term ‘Testamentary capacity’, that a person, to have testamentary capacity, as that term is used in this charge, is meant that such person at the time of the execution of the will, must have had sufficient mental ability to understand the business in which he was engaged, the effect, of his act in making the will, and the nature and extent of his property; he must ,be able to know his next of kin and the natural objects of his bounty and their claims upon him; he must have memory sufficient to collect in his mind the elements of the business about to be transacted and to hold them long enough to perceive at least their obvious relation to each other and to be able to form a reasonable judgment as to them.” (3) The instrument proposed has not been revoked; and (4) subject to an affirmative answer No. 2, the instrument was not procured by undue influence.

Contestant relies upon twenty-four points of assigned error, some of which relate to arguments made to the jury by proponent’s counsel. We have concluded that certain of those points are well taken and require a reversal of the judgment before us. We shall later discuss them. Some other points before us will no doubt arise at a subsequent trial and for the guidance of the court at such trial we shall mention them.

Both sides requested peremptory instructions; both were properly refused by the court; there were certain material issues raised by the testimony for the jury’s determination.

Contestant’s first point challenges the court’s denial of his request for an instructed verdict, and points two, six, seven, nine and ten assert as many reasons why, from the record, his request for a peremptory instruction should have been granted. These contentions embraced such as, there was testimony that testator had not signed the purported will prior to the signing by one of the attesting witnesses; error in permitting a subscribing witness to testify that testator signed by his mark when the will recited he signed his name thereto; the form of the first special issue inquiring 'if testator signed the will or if it was signed by some other person at his direction and the explanation above quoted in connection with that issue.

We think it a strained construction of the testimony to say that there was evidence that testator had not signed the instrument when one of the witnesses signed. True, testator did not physically sign his name at all. In any event, there was testimony by the other subscribing witness that testator could not sign his name and had touched the instrument with which his mark was made and instructed the witness to write his name before either subscribing witness attested the instrument. There could have been no more than a conflict in the testimony and the jury resolved it (as it had a right to do) in favor of proponent.

All of the foregoing contentions of contestant apparently were based upon the theory that a will could not be executed by testator making his mark in lieu of a genuine signature, and further 'because the instrument recited that testator had “hereunto signed” his name thereto. There were allegations that testator' could not sign his name at the time because of a previous “light stroke.”

The language of Article 8283, Vernon’s Ann.Civ.St., has been construed to mean that a will may be executed by a testator who is unable to write his name, by making his mark and instructing some other person to write his name. Short v. Short, Tex.Civ.App., 67 S.W.2d 425; Franklin v. Martin, Tex.Civ.App., 73 S.W.2d 919; Saathoff v. Saathoff, Tex.Civ.App., 101 S.W.2d 910, writ refused; Mortgage Bond Corp. v. Haney, Tex.Civ.App., 105 S.W.2d 488, writ refused. Under the cited authorities we overruled the points of error under discussion.

If, as contended by contestant under his fifteenth point,- testator did not sign or malee “his mark” in the presence of or prior to attestation by one of the witnesses, the instrument would not be denied probate on that account alone. Ludwick v. Fowler, Tex.Civ.App., 193 S.W.2d 692, 694—695, error refused, n. r. e.

Another group of assignments complain of the court’s refusal to submit requested issues, the substance of which would have inquired if- testator" “signed” the proposed instrument; did he make the mark designated thereon as “his mark”; did testator have full knowledge of the contents of the instrument, and did he intend that it should be his will.

The findings of the court from undisputed facts and the verdict on the submitted issues furnished proponent the requisites set out in Article 3348, V.A.C.S. To have submitted the requested issues would have been a repetition, in effect, of what the court did submit and were properly rejected.

There are complaints of the court’s exclusion of parts of oral depositions taken before the date of trial under stipulations that either party could urge objections to their admissibility when offered in evidence. Based upon the objections made at the time parts of the proposed depositions were offered, we hold that they were properly excluded.

We think the parts of the testimony of proponent not objectionable under Article 3716, as complained of under point eight in contestant’s brief.

Points sixteen to twenty-four complain of- arguments of proponent’s counsel while presenting the case to the jury. It is needless to repeat here what our courts have so many times said about the privilege of counsel to make their own deductions from the testimony, even though such deductions be illogical or improbable. The question was discussed by this court and authorities cited in Whitten v. Dethloff, Tex.Civ.App., 214 S.W.2d 480, 486. However, there are limits beyond which attorneys may not go in arguments to the jury. When arguments go to matters outside the realm of the testimony and' furnish information to the jury which it did not otherwise have and it is calculated to and probably did affect the verdict of the jury, reversal must follow. Whether or not such arguments probably affected the verdict is a question of law and is reviewable on appeal. White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200. Certain of the arguments complained of were well within legitimate inferences and deductions of counsel from the testimony and will receive no further comment from us.

Points sixteen, twenty-one, twenty-two and twenty-three complain of arguments shown by approved bills of exceptions to have been timely objected to and requests for instruction to the jury not to' consider same, and overruled and refused by the court, which when taken as a whole we conclude are violative of our rules of procedure, were calculated to and probably resulted in a verdict which, but. for such arguments, might have been different. It is often difficult to say with certainty -what questionable arguments affect verdicts. We do know, however, that in this case the verdict was against contestant on all issuable facts. In the absence of any testimony upon which to base them, we are unwilling to approve the arguments here complained of. They came from an attorney who prepared and witnessed the will in controversy; he is shown to have been born and reared in Paris, Texas, where the trial was being held. Objections and requests to instruct the jury not to consider were made at the time and were based substantially upon the absence of testimony relating to the matters commented upon, effectively placing new and independent evidence before the jury not produced from the witness stand, and coming from counsel who was reared in that city and had a career of long standing before the Lamar County bar and the people of that community.

Objectionable arguments in the order of the points above mentioned were as follows:

(16) "Gentlemen, all we have to do in this case is to show that George Guest had testamentary capacity and then the burden shifts to contestant upon all other matters involved in this suit.”

(21) "Gentlemen of the jury there is nothing peculiar or uncommon about the facts and conditions under which this will was made. Wills are frequently made under such conditions and circumstances, and held to he valid." The emphasized sentence was objectionable.

(22) “Gentlemen of the- jury, this- is the first time in the history of Paris, that a person belonging to the negro race has ever made a substantial philanthropic contribution to the Kings Daughters, organization, and you should try to uphold it with your verdict.”

(23) “It is not unusual for a lawyer to prepare a will and also to be witness to it. That is the custom among lawyers everywhere.”

Appellate courts find no- pleasure in reversing judgments of trial courts and requiring new trials in cases of this character, which obviously are expensive, consume many days of labor of the court, attorneys, jurors and witnesses. All trials must be conducted within proper bounds prescribed by the law. Appellate courts may not whittle down the well prescribed rules by which such trials are conducted and lend sanction to arguments of counsel which have been so frequently condemned.

In Woodard v. Texas & P. Ry. Co., 126 Tex. 30, 86 S.W.2d 38, 40, the court said in part: “Attorneys must come to understand that so far as this court may have jurisdiction to do so, the rules with reference to the orderly, fair, and impartial trial of causes, as regards argument of counsel, conduct of jurors, and the substantial methods of procedure, will be consistently enforced. '* * * If attorneys persist in seeking to obtain verdicts of jurors by resorting to arguments such as is hereinabove set out, when they may safely intrust their causes to the jury upon the evidence and the charge of the court, commented upon in a fair' and reasonable manner, they have no one to blame but themselves when a reversal is ordered by this court.”

There is yet one other assignment of error presented by contestant’s fourth point, which deserves attention. In view of the whole record before us, we are not saying that we would reverse this judgment on point four alone. It is to be hoped that the proceedings there detailed will not occur again. By a partially qualified and approved bill of exception, a rather lurid picture is presented of the courtroom scenes at recess intervals in the presence of the jury. We quote from the bill of exception: “Be it remembered that, upon the trial of the above styled cause'to and before a jury, several members of the Kings Daughters organization, surrounded with, and accompanied by, various of their women associates, regularly during the Court’s recesses and in the presence of' and before the jury would have vacated their seats, converged en masse around proponent and her counsel and went through a routine of hand-shaking, backslapping and other forms of welbwishing.” It is disclosed by the bill that contestant’s attorney in open court following, each of such demonstrations objected and excepted for various and sundry assigned reasons and moved the court to instruct said women to desist from additional exhibitions of the nature complained about and to admonish the jury not to consider those demonstrations theretofore made for any purpose. The court approved the bill of exception with the following qualification: “On various occasions during the trial several ladies were in the court room. During recess of court an undetermined number of them talked with proponent and ' her counsel. During the trial court recessed several times some of which Were quite lengthy.”

It is needless to say that trials of this character involve serious matters of material interest to the respective litigating parties and that trials should be conducted by the presiding judge in an orderly manner and to protect the jury as far as possible from outside influences. It is a matter of common knowledge to all courts that in such cases as this where jurors are not kept together under order of the court, it is a matter of physical impossibility for the court to prevent persons rightfully entitled to be present-in the courtroom from conversing with litigants and attorneys at recess periods. But we think that where it becomes obvious that partisans are either purposely or. inadvertently abusing that privilege of communicating with the parties in the courtroom in order to influence the jury he should prevent it as far as is reasonably possible. Demonstrations of partisans during pending litigation, in the presence and hearing of the jury were condemned in no uncertain terms in Owens v. State ex rel. Jennett, 64 Tex. 500; Vogt v. Guidry, Tex.Civ.App., 229 S.W. 656, 658.

For the reasons shown, we sustain points of error 16, 21, 22 and 23 relating to arguments of opposing counsel. All other points of error are overruled and the judgment of the trial court .will be reversed and the cause remanded ’ for, another trial not inconsistent 1 with our holdings herein. Reversed and remanded. ■ .