Salser v. Vick

375 S.W.2d 763, 1964 Tex. App. LEXIS 1948

• Court: Court of Appeals of Texas
• Decided: February 12, 1964
• Docket: No. 11150
• Status: Published

Opinions

ARCHER, Chief Justice.

This is a will contest. Appellee is the proponent of the last will and testament of A. L. Vick, deceased. Appellants are Susie Salser, John Vick, W. H. Vick, Mary Vick Richardson and husband, C. H. Richardson, Evie Vick Harris and husband, H. C. Harris, Clint Vick, Clayton Vick, Ginger Ann Vick, a Minor, by and through Doxie Vick, her Guardian and Next Friend and Doxie Vick for herself individually and as Next Friend and Guardian for Ginger Ann Vick and Lonie Mae Goetzman and husband, Wayne Goetzman, and Lawrence Clifford Roach and James Neal Roach and Littie Sue Roach are the Contestants.

A. L. Vick and Melba Faye Davenport were married on October 28, 1954, and instrument offered and admitted to probate as the last will and testament of A. L. Vick was executed on November 22, 1954. Mr. Vick died on August 5, 1957.

The will was offered, for and admitted to probate by the County Court, and the contestants perfected their appeal to the District Court of Trinity County, and a trial was had to a jury and based on the jury’s answer to a Special Issue, judgment was rendered admitting the instrument to probate as the last will and testament of A. L. Vick. Motion for new trial was presented and overruled, and an appeal has been perfected.

The appeal is predicated on nine points assigned as error and are that the Court erred in overruling contestants’ motion for instructed verdict at the close of proponent’s evidence, because there was no evidence of probative value raising the issue of the testamentary capacity of A. L, Vick, in refusing to grant judgment non obstante veredicto and to disregard the answer of the jury, that the jury finding is so against the overwhelming great weight and preponderance of the evidence so as to be manifestly unjust, wrong and contrary to law, and that there is no evidence or the evidence is insufficient to support the submission of Issue No. 1 to the jury.

Special Issue No. 1 is as follows:

“Do you find from a preponderance of the evidence that Arlen Vick had testamentary capacity on November 22, 1954, at the time he executed the purported will offered for probate within this case:

“Answer ‘Yes’ or ‘No.’

“Answer: -

“In connection with the foregoing Special Issue, you are instructed that TESTAMENTARY CAPACITY, as. that term is used in connection with the execution of wills, and for your guidance in this case, 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 be able to form a reasonable judgment as to them.”

The jury answered this issue “Yes.”

We believe the evidence reasonably supports the jury’s answer.

The Court did not err in permitting the witness Wiley B. Thomas, the attorney who drew the will for Mr. Vick, to testify that in his opinion A. L. Vick had sufficient mental ability to have memory sufficient to collect in his mind the elements of business in which he was engaged, and to perform a reasonable judgment; that he was personally acquainted with A. L. Vick and had been for 15 to 20 years, and knew the general nature of Vick’s business, that Vick executed the will in the presence of Lois Suggs, a secretary in Mr. Thomas’ office and the witness, at the testator’s request; that Mr. Vick’s mind appeared to be normal, and for one engaged in the business of trading cattle and hauling pulp wood, Vick’s mind was quick.

Mrs. Lois Suggs, called as a witness by the proponent, testified that she was employed as a secretary by Mr. Thomas and was an experienced stenographer, and had typed many wills including the will for Mr. Vick, and at the request of Mr. Vick, witnessed the will with Mr. Thomas, and identified the instrument as the will of Mr. Vick.

Henry Harvel testified that he was acquainted with Arlen Vick and bought some property from Vick in 1954 and lived in the house with Mr. and Mrs. Vick for a few weeks, and detailed the circumstances of the purchase and the obtaining of a loan and that the transaction was finally closed with Mr. and Mrs. Vick signing the papers.

There was testimony by a witness for contestants on cross-examination identifying 14 exhibits showing various loans secured by A. L. Vick from 1947 to July 3, 1957 from banks, individuals and the United States Government.

Edwin McClain, called by the proponent, testified that he was employed at a bank in Groveton, Texas and had been for 16 years; that he had known Arlen Vick for 10 years and had conversations with him from time to time, mostly in the bank, concerning a loan or to make a deposit; that he had made Vick loans periodically from 1947 to 1957 and Vick was able to give description of property he wanted to borrow money on, and detailed such loans and described the securities; that all loans were paid and that the witness saw nothing unusual about Vick and, in his opinion, Vick was of sound mind.

The contestants tendered a number of witnesses all of whom testified as to actions and conduct of A. L. Vick, and were of the opinion that A. L. Vick was of unsound mind. Their testimony is lengthy but to the same tenor and effect. Many of these witnesses were related to A. L. Vick.

The evidence was in sharp conflict. The jury saw and heard the testimony of all who testified and resolved the fact issue in favor of the proponent of the will, and we believe correctly so by a preponderance of the evidence. 44 Texas Jurisprudence, p. 573, Section 32. Johnson v. Poe, Tex.Civ.App., 210 S.W.2d 264, er. ref., n. r. e.

In Green et al. v. Dickson et al., Tex.Civ.App., 208 S.W.2d 119, er. ref., n. r. e., the tests to determine testamentary wills are set forth.

The judgment of the Trial Court is affirmed.

Affirmed.