The appellants, V. C. Ludwick and Mrs. Nora Kelly, nephew and niece respectively of Mrs. Nancy C. Bailey, deceased, brought this action in the County Court to set aside the probate of Mrs. Bailey's will. The instrument was probated on October 3, 1944, purports to have been executed December 11, 1942, signed by Mrs. Bailey making her mark, and witnessed by Mrs. Maudie Flatt and Albert S. Jackson, who signed in two places, once under the heading "Witnesses", and the other the
attesting clause reciting facts showing that the instrument was executed with the formalities and under the solemnities required by the statute for the proper execution of a will.
Mrs. Bailey having died on September 18, 1944, her will together with the application for its probate was filed in the County Court of Dallas County on September 20, 1944, by Chlorris Fowler, named sole independent executrix in the will; and, after citation, in due time was admitted to probate October 3, 1944, on the affidavit of Mrs. Flatt taken in open court, Mr. Jackson, the other subscribing witness, having preceded Mrs. Bailey in death.
Prior to January 25, 1945, appellants, as next of kin, filed an application in said court to have the will annulled and the probate thereof set aside, making the independent executrix a party to said proceeding which was heard and denied by the County Court; appealed to the District Court where on May 6, 1945, appellants filed their second amended pleading in which they sought to have the will and its probate nullified and set aside on the following grounds: (1) That at the time of the purported execution of the will Mrs. Bailey, because of feebleness of mind, did not possess testamentary capacity; (2) that the purported execution of the will by Mrs. Bailey was procured by undue influence exerted upon her by Chlorris Fowler, the person named independent executrix; (3) that the alleged will was not executed with the formalities and solemnities required by statute.
The cause coming up for trial on May 28, 1945, a jury was demanded and duly empaneled and, at the conclusion of appellants' evidence, the court being of opinion that only a question of law was raised, withdrew the case from the jury and rendered judgment in favor of appellee, denying the relief sought by appellants, to which they duly excepted, gave notice of and perfected this appeal.
The first ground of attack upon the will and its probate is the want of testamentary capacity of Mrs. Bailey. This was neither proven nor were the facts sufficient to raise the issue; in fact was disproven, and in briefing the case appellants seem to have abandoned that contention.
The second ground of attack was that the execution of the will by Mrs. Bailey was procured by the undue influence exerted upon her by Chlorris Fowler, the person named as executrix.
We have heretofore shown that the will purports to have been properly executed and probated. Its provisions in substance are these: (1) Testatrix directed that all her just debts be paid, quoting: "(2) It is my desire and will that I be buried by the side of my husband and that the Suggs Funeral Home of Dallas have charge of the funeral. (3) I hereby will, devise and bequeath unto my good friend, Miss Chlorris Fowler, * * * and who has been most kind and helpful to me, the sum of $100 to be paid to her as soon after my death as sufficient funds therefor are available. I will my featherbed to Mrs. Bert Rawlins, my good friend and neighbor; and to my good friend and neighbor, Mrs. Rose Martinez, I will and bequeath the sum of $25 in cash. (4) All the residue of the property of whatever kind, real, personal and mixed, and wheresoever situated, of which I may die seized and possessed, I hereby will, devise and bequeath unto the Fowler Home for Children of Dallas, Dallas, Texas * * *." In the next paragraph the testatrix appointed "my good friend Miss Chlorris Fowler as sole executrix of this my last will and testament without bond", and provided that the County Court take no action nor exercise any authority over the estate other than to probate the will and require a return of an inventory, appraisement, and list of claims. She then certified that she executed the instrument by signing it in the presence of the witnesses whose names appear below, and who attested the execution of the will at her request and in her presence and in the presence of each other. This is followed by the signature of the witnesses Mrs. Maudie Flatt and Albert S. Jackson, who also signed the attesting certificate stating that the instrument was signed by Mrs. Bailey, who declared that the instrument was her last will and testament and that she requested them to witness its execution, and at her request and in her presence and in the presence of each other stated that they had signed their names as witnesses.
Mrs. Bailey, being about 90 years of age at the time the will was executed, lived alone in her home, except for some roomers, her husband having previously died. Miss Fowler, a near neighbor, had ministered continuously to her prior to her death, and also to her husband before his
death. Mrs. Bailey was heard to say that Miss Fowler looked after her when she was sick, had been nice to her husband and had rendered every service she could for a long period of time without charging anything for her services. So we do not think it at all unreasonable or anything out of the ordinary for Mrs. Bailey, when she made her will, to remember her friend in whom she had confidence by giving her the small gift of $100 and appointing her sole independent executrix of her will, referring to Miss Fowler as "my good friend."
It seems that the chief desire of Mrs. Bailey, to the exclusion of everything else, was to be buried in a grave beside that of her deceased husband, and in this connection Miss Fowler suggested that she make a will directing that this be done, stating that otherwise her niece might not or would not do so. This is the only suggestion, so far as is disclosed by the record, that Miss Fowler ever made to Mrs. Bailey in regard to the execution of a will. She never suggested how Mrs. Bailey should dispose of her property, or to whom. The record, in our opinion, discloses that Mrs. Bailey had a will of her own, which persisted to the last. This is illustrated by the following incident which occurred just a short time before her death: Mrs. Bailey being about 92 or 93 years of age, Miss Fowler offered to purchase Mrs. Bailey's home, and in that connection suggested that it would be better for her to give up her home and "live in an old ladies home." This suggested arrangement was promptly vetoed by Mrs. Bailey who said "No, that she was going to die right there." This is the only instance, so far as disclosed by the record, that Miss Fowler ever tried to influence Mrs. Bailey in regard to her property. While it is quite true that in the execution of her will, Mrs. Bailey neither mentioned in any way nor recognized her niece and nephews, appellants herein, yet in our opinion this is not to be marveled at in view of the fact that the record fails to disclose that either the niece or nephews ever ministered to, visited, or paid any attention whatsoever to these aged people, Mrs. Bailey or her husband. The delicate attention these relatives could and probably should have bestowed upon these lonely, aged people, was left to others, and seems to have been voluntarily undertaken by Miss Fowler, who for years was their Good Samaritan. We conclude that the issue of undue influence was not raised by evidence; hence the court did not err in failing to submit same to the jury.
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The appellants, V. C. Ludwick and Mrs. Nora Kelly, nephew and niece respectively of Mrs. Nancy C. Bailey, deceased, brought this action in the County Court to set aside the probate of Mrs. Bailey's will. The instrument was probated on October 3, 1944, purports to have been executed December 11, 1942, signed by Mrs. Bailey making her mark, and witnessed by Mrs. Maudie Flatt and Albert S. Jackson, who signed in two places, once under the heading "Witnesses", and the other the
attesting clause reciting facts showing that the instrument was executed with the formalities and under the solemnities required by the statute for the proper execution of a will.
Mrs. Bailey having died on September 18, 1944, her will together with the application for its probate was filed in the County Court of Dallas County on September 20, 1944, by Chlorris Fowler, named sole independent executrix in the will; and, after citation, in due time was admitted to probate October 3, 1944, on the affidavit of Mrs. Flatt taken in open court, Mr. Jackson, the other subscribing witness, having preceded Mrs. Bailey in death.
Prior to January 25, 1945, appellants, as next of kin, filed an application in said court to have the will annulled and the probate thereof set aside, making the independent executrix a party to said proceeding which was heard and denied by the County Court; appealed to the District Court where on May 6, 1945, appellants filed their second amended pleading in which they sought to have the will and its probate nullified and set aside on the following grounds: (1) That at the time of the purported execution of the will Mrs. Bailey, because of feebleness of mind, did not possess testamentary capacity; (2) that the purported execution of the will by Mrs. Bailey was procured by undue influence exerted upon her by Chlorris Fowler, the person named independent executrix; (3) that the alleged will was not executed with the formalities and solemnities required by statute.
The cause coming up for trial on May 28, 1945, a jury was demanded and duly empaneled and, at the conclusion of appellants' evidence, the court being of opinion that only a question of law was raised, withdrew the case from the jury and rendered judgment in favor of appellee, denying the relief sought by appellants, to which they duly excepted, gave notice of and perfected this appeal.
The first ground of attack upon the will and its probate is the want of testamentary capacity of Mrs. Bailey. This was neither proven nor were the facts sufficient to raise the issue; in fact was disproven, and in briefing the case appellants seem to have abandoned that contention.
The second ground of attack was that the execution of the will by Mrs. Bailey was procured by the undue influence exerted upon her by Chlorris Fowler, the person named as executrix.
We have heretofore shown that the will purports to have been properly executed and probated. Its provisions in substance are these: (1) Testatrix directed that all her just debts be paid, quoting: "(2) It is my desire and will that I be buried by the side of my husband and that the Suggs Funeral Home of Dallas have charge of the funeral. (3) I hereby will, devise and bequeath unto my good friend, Miss Chlorris Fowler, * * * and who has been most kind and helpful to me, the sum of $100 to be paid to her as soon after my death as sufficient funds therefor are available. I will my featherbed to Mrs. Bert Rawlins, my good friend and neighbor; and to my good friend and neighbor, Mrs. Rose Martinez, I will and bequeath the sum of $25 in cash. (4) All the residue of the property of whatever kind, real, personal and mixed, and wheresoever situated, of which I may die seized and possessed, I hereby will, devise and bequeath unto the Fowler Home for Children of Dallas, Dallas, Texas * * *." In the next paragraph the testatrix appointed "my good friend Miss Chlorris Fowler as sole executrix of this my last will and testament without bond", and provided that the County Court take no action nor exercise any authority over the estate other than to probate the will and require a return of an inventory, appraisement, and list of claims. She then certified that she executed the instrument by signing it in the presence of the witnesses whose names appear below, and who attested the execution of the will at her request and in her presence and in the presence of each other. This is followed by the signature of the witnesses Mrs. Maudie Flatt and Albert S. Jackson, who also signed the attesting certificate stating that the instrument was signed by Mrs. Bailey, who declared that the instrument was her last will and testament and that she requested them to witness its execution, and at her request and in her presence and in the presence of each other stated that they had signed their names as witnesses.
Mrs. Bailey, being about 90 years of age at the time the will was executed, lived alone in her home, except for some roomers, her husband having previously died. Miss Fowler, a near neighbor, had ministered continuously to her prior to her death, and also to her husband before his
death. Mrs. Bailey was heard to say that Miss Fowler looked after her when she was sick, had been nice to her husband and had rendered every service she could for a long period of time without charging anything for her services. So we do not think it at all unreasonable or anything out of the ordinary for Mrs. Bailey, when she made her will, to remember her friend in whom she had confidence by giving her the small gift of $100 and appointing her sole independent executrix of her will, referring to Miss Fowler as "my good friend."
It seems that the chief desire of Mrs. Bailey, to the exclusion of everything else, was to be buried in a grave beside that of her deceased husband, and in this connection Miss Fowler suggested that she make a will directing that this be done, stating that otherwise her niece might not or would not do so. This is the only suggestion, so far as is disclosed by the record, that Miss Fowler ever made to Mrs. Bailey in regard to the execution of a will. She never suggested how Mrs. Bailey should dispose of her property, or to whom. The record, in our opinion, discloses that Mrs. Bailey had a will of her own, which persisted to the last. This is illustrated by the following incident which occurred just a short time before her death: Mrs. Bailey being about 92 or 93 years of age, Miss Fowler offered to purchase Mrs. Bailey's home, and in that connection suggested that it would be better for her to give up her home and "live in an old ladies home." This suggested arrangement was promptly vetoed by Mrs. Bailey who said "No, that she was going to die right there." This is the only instance, so far as disclosed by the record, that Miss Fowler ever tried to influence Mrs. Bailey in regard to her property. While it is quite true that in the execution of her will, Mrs. Bailey neither mentioned in any way nor recognized her niece and nephews, appellants herein, yet in our opinion this is not to be marveled at in view of the fact that the record fails to disclose that either the niece or nephews ever ministered to, visited, or paid any attention whatsoever to these aged people, Mrs. Bailey or her husband. The delicate attention these relatives could and probably should have bestowed upon these lonely, aged people, was left to others, and seems to have been voluntarily undertaken by Miss Fowler, who for years was their Good Samaritan. We conclude that the issue of undue influence was not raised by evidence; hence the court did not err in failing to submit same to the jury.
The main contention of appellants is that the will was not executed with the formalities and under the solemnities and circumstances required by the statute; and, narrowed still further, that the will was not shown to have been signed by Mrs. Bailey. The will having been duly probated in the County Court and judgment to that effect entered, obviously the burden of proof was upon appellants to establish the issue presented, that is, that the will was not properly executed by Mrs. Bailey. Although Mrs. Flatt, one of the subscribing witnesses, had twice attested to the fact that the will was signed by Mrs. Bailey and by the subscribing witnesses in her presence (once when Mrs. Flatt signed the attestation clause to the will and another time under oath in the County Court when the will was probated on her testimony), yet the appellants now rely upon the testimony of Mrs. Flatt to overturn the will and the probate thereof. Mrs. Flatt testified on the recent trial that on the morning of the day the will was executed, Mrs. Bailey sent for her to come to Miss Fowler's home, that she (Mrs. Bailey) was making her will and wanted Mrs. Flatt to sign same as a witness. In response to this request, Mrs. Flatt went to the room where Mrs. Bailey and Mr. Albert S. Jackson, the attorney who wrote the will, were, the three being the only persons present during the proceedings. Mr. Jackson supervised and did the talking; showed the document that he had prepared, said it was the will of Mrs. Bailey and that they wanted Mrs. Flatt to witness same; Mrs. Flatt testified that thereupon she signed the will in two places, just as it appears. All this occurred in the presence of Mrs. Bailey. Obviously what was said by Mr. Jackson on the occasion, in effect, was as if Mrs. Bailey had been speaking. This rule is announced in 68 C.J. (subject, Wills), p. 688, § 338. Although on direct examination Mrs. Flatt said that Jackson did not sign as a witness in her presence, yet at two places in her testimony on cross-examination she said that both she and Jackson signed in the presence of the testatrix. Mrs. Flatt having attested to that fact twice before, once over her signature to the will, again under oath in court when the will was probated,
and twice on cross-examination, we must assume that if her testimony is to be relied upon at all, that both she and Jackson signed as subscribing witnesses in the presence of Mrs. Bailey. However the witnesses were not required to sign in the presence of each other. The controlling statute, Article 8283, R.C.S., makes no such requirement; this was held by the Beaumont Court in Davis v. Davis, Tex. Civ. App. 45 S.W.2d 240.
Mrs. Flatt also testified that Mrs. Bailey's name was not on the instrument when witness signed, and that she did not see Mrs. Bailey sign the document at all. Of course this contradicts what she had twice before said, and once under oath; but under the statute it was not necessary for Mrs. Bailey to have signed in the presence of the subscribing witnesses; she could have signed out of their presence either before or after they signed. The statute controlling this subject, Article 8283, R.C.S., contains no such provision; as held by the San Antonio Court in Franklin v. Martin, Tex. Civ. App. 73 S.W.2d 919 (writ ref.). The main question and the decisive one is: Did Mrs. Bailey sign at all any time?
Aside from the presumptions that may be indulged under the circumstances, we think Mrs. Flatt gave testimony showing conclusively that Mrs. Bailey did sign the document. Mrs. Flatt testified that the same day, a short time after the events at Miss Fowler's home, she had a talk with Mrs. Bailey who said she didn't know if she had done the right thing; and that a short time before her death, Mrs. Bailey seemed troubled, stated she would like for some one to take her to town, that she wanted to make another will, desired to make certain changes, but did not indicate in what respect she wished to change the will already made. This clearly indicates that Mrs. Bailey consummated the execution of a will, was doubtful that she had done the right thing and wished to change the will, which was never done. So we have the execution of the will established by the admissions Mrs. Bailey herself made to one of the subscribing witnesses.
In regard to the presumptions that should be indulged in the situation presented by the facts in this case, the Supreme Court of Illinois, in Gould v. Chicago Theological Seminary, 189 Ill. 282, 59 N.E. 536, 538, quoting from the case of Abbott v. Abbott, 41 Mich. 540, 2 N.W. 810, said: "We know of no rule of law which makes the probate of a will depend upon the recollection, or even the veracity, of a subscribing witness. The law, for wise and obvious reasons, requires such instruments to be executed and attested with such precautions as will usually guard against fraud. But, if the forgetfulness or falsehood of a subscribing witness can invalidate a will, it would be easy in many cases to use such artifices or corruption as would render the best will nugatory. Their evidence is not conclusive either way, nor does the law presume that they are either more or less truthful than others. It presumes they had, when they signed, full knowledge of what they were doing; and in case they are dead their attestation, when proved, is prima facie evidence that all was done as it should be." Also, quoting from McCurdy v. Neall,42 N.J. Eq. 333, 7 A. 566, the Court said: "The attestation clause is perfect, and the execution to which the witnesses thus certify and attest is an exact compliance with the statute. Under such circumstances the court must have clear proof, to warrant the conclusion that the will was not duly executed."
The evidence in our opinion is such that reasonable minds would not differ in regard to the fact that the will in question was in all respects properly executed and probated; to hold otherwise on the testimony of Mrs. Flatt, which is so contradictory as to be an unsafe guide, would be a mockery of the right of testamentary disposal of property.
In point of error 5 appellants contend or at least seem to contend that the will was improperly probated in the County Court on the testimony of only one of the attesting witnesses. As heretofore related, Mr. Albert Jackson, the attorney who drew the will and who was one of the attesting witnesses, died previous to the death of Mrs. Bailey; hence the will was probated alone on the affidavit of Mrs. Flatt, the other subscribing witness. We do not think the contention is correct. Article 3344, R.C.S., subd. 1, in our opinion, is a complete answer to such contention; it provides that "A written will produced in court may be proved: 1. By the affidavit of one of the subscribing witnesses thereto, taken in open court and subscribed by such witness." The record in this case
discloses that that is precisely what was done.
Finding no error in the action of the court below, we overrule all points of error presented for reversal, and affirm the judgment.
Affirmed.