*1 Rеlators, Eugenio Mi 1938, designed to 861, (Tex.Civ.App. coerce — Beaumont reles, Slubar, ref’d). regulations con adopting Leroy writ Roberto Míreles extensions, Board, cerning Lane, water main the mandato comply Richard Stovall, Adjustment like in the Board of 6225, in injunction No. ry issued cause legislative or clearly exercising “its Court, styled the 63rd Judicial District Homes, governmental power,” Crownhill City et a l. v. Implement Company Frontier 448, Antonio, Inc. of City v. S.W.2d San 1981, al., 12, of Pass on March Eagle et 1968, Christi (Tex.Civ.App. Corpus seeks injunction insofar such mandatory — n.r.e.), writ be ref’d and must considered Relators to extend compel these Eagle governmental City agency of the Pass Eagle water City mains of the Pass. Water Works to Deer Run Subdivi System County sion and to furnish It in Maverick pointed should also be out that lots subdivision. mem water service to the in such sought relief individual against the by Developer bers of the Board Respondents we are confident that Since City required performance of duties order, will this the Clerk comply with only perform which the members could prohi- writ shall issue the this Court and the relief capacities, their official disobey or- Respondents bition unless sought members could be by such individual der. ca only obtained them in their official of action and pacities. Since the causes
defenses the members asserted only them
Board could be asserted exemption
their official from capacities, appeal bond is requirement filing Ranger applicable. City of v. Com
clearly
mission on Law Officer Stan Enforcement Education, dards Rose Lola FAULKNER 1980, writ n.r. (Tex.Civ.App. ref’d — Austin Appellants, Stacy, e.); Schaefer, 279 Andricks v. writ). (Tex.Civ.App. no Antonio — San THRAPP, Kathy members, Ann by giving its
The Board and Appellee. their appeal, appeal perfected notice of 363. this Court. Tex.R.Civ.P. 8828. No. action any It is clear Texas, Appeals of Civil Court contempt holding Relators
trial court Texarkаna. jurisdiction of this would interfere with the of Relators appeal determine Court to April portion judgment of the from that 12, 1981. Rehearing May Denied dismissing from cause No. trial court them in excess of the 6225, and would further be per
jurisdiction of the trial court since appeal judg from such
fection of Relators’ juris with exclusive
ment vested this Court contempt questions
diction consider of such order.
based disobеdience prohibition for writ of Wal Honorable
granted. Respondents, the the Dis sitting judge
ter Loughridge, District, Court,
trict Maverick 63rd Judicial Texas, Properties, Run and Deer
County,
Inc., taking action any prohibited are *2 Texarkana, Newman, ap- for
Thomas R. pellants. Texarkana, appellee. for
Lynn Cooksey, BLEIL, Justice. case appeal in this will contest whether the trial
presents questions of court erred in the admission of certain evi- dence. We find no error and affirm the of thе trial court. nothing judgment take Stacy, appel- Lola Faulkner and Rose lants, of Edna Gran- daughters are natural berry. appellee, Kathy Granberry Ann Thrapp, granddaughter is her appel- brother of daughter a deceased lants. Granberry died
On March Edna years was 88 old. natural causes. She conveyed In October of 1975 she a will which left real estate and executed granddaughter, her entire estate to her Ka- death, After her made thy. probate for the of that will. will and deed filed this suit to set aside the alleging that at the time of execution attorney documents the deceased was not who had deed prepared will, sound mind. also They appellee gave claim that testimony. similar He also grandmoth- objection exerted undue influence on her appellants’ er. had testamen- ex- tary capacity when the documents were lifelong The dеceased was resident *3 Kathy Thrapp, and her Appellee, ecuted. too, County, Bowie resid- Appellee, Texas. brother, Granberry, also told of their Roger ed had County. appellants in Bowie Ka- grandmother’s good mental condition. in same spent early each their this years thy Mr. Davis testified to the circum- and area, however, they had both as adults of the surrounding stances the execution of moved to At the time another state. absence of the exer- document and of the appellants Granberry’s Mrs. death both upon Edna tion of influence any undue of was able were out state and neither one Granberry at that time. to attend funeral. their mother’s issues, jury, response special in on evidence that Edna put did have testa- Granberry found that Edna years, in that she Granberry was advanced when executed mentary capacity she had one memory trouble with her and that will to find that the and deed. It failed of her feet Mrs. Gran- Sally bothered her. produced was of the documents execution sister-in-law, Edna’s testified on be- berry, by Kathy. exerted by undue influence half of had known and appellants she Judgment was on verdict entered sixty for at Granberry lived near Edna least nothing take Stacy Lola Faulkner and Rose years always very and that Edna was fond by their suit. she During childhood Kathy. Kathy’s spent grandmother. much time with her of error point first appellants’ Kathy moved in with and Granberry complaint is the trial court erred made that stayed during years until with her her last in violation of admitting in evidence finally nursing Kathy she a home. went to 3716, commonly art. Tex.Rev.Civ.Stat.Ann. her grandmother up cared for her until That known as the Dead Man’s Statute. Sally Granberry death. also testified article provides, and property Edna knew what she owned executors, ad- “In against or actions who her heirs with were and had discussed ministrators, judg- which in guardians, she the manner which Sally Granberry may against ment be rendered for upon had her estate dispose decided to such, shall be al- party them as neither her Granberry death. Sally other as against testify lowed knew Granberry she did not think Edna with, by, stаtement any transaction her doing she when she made what was ward, testator, unless intestate or will. opposite testify called to thereto of this article Bernardino, party; provisions Cali-
Robert Faulkner
San
actions
shall
include all
extend
and
fornia,
appel-
of one
and the husbаnd
representa-
lants,
against
Edna Gran-
heirs
testified he did not think
any
arising out
get her
tives of a decedent
of who would
berry
aware
death, although he never
decedent.”
upon
transaction with such
property
her
with his moth-
any subject
discussed this or
admitting
court erred
urged
It is
that the
for appellаnts
er-in-law.
witnesses
Other
1 and
plaintiffs’ exhibits
into evidence
Edna’s mind
years
related that in her latter
and deed
were the will
These documents
good
was not as
it once was.
into evi-
controversy and
been offered
had
purpose
appellants for
limited
dence
Dr.
Paul
Dr. James Leeves
Jоhn
and
Later in the
validity.
attacking
their
Jones, Jr.,
during
treated Edna
all
the documents for
appellee
trial
offered
said that she was
They
1975and 1976.
both
into evi-
and
were admitted
purposes
they
nature
mentally
aware
competent,
objection. The
over
purposes
and in control dеnce for all
property,
and extent of her
objection.
Davis,
this
trial
overruled
Jerry
properly
mental faculties. Mr.
court
her
in no
They rely
Radkey,
Their introduction in evidence
manner
Carr
prohibits parties
violates the rule that
(Tex.1965).
It holds that while evi-
testifying as to transactions with a de
testаtor’s mental condition
dence of a
Chajkow
ceased testator
in certain eases.
admissible,
capacity to
of mental
evidence
Clements,
(Tex.Civ.
ski v.
The admissibility of certain hear opinion as to the objection, to state his say during testimony matters the of Mr. will. to make a legal capacity person of a Davis is assigned also as an error on this This rule because the determination exists appeal. Mr. Davis gave testimony capacity testamentary of the existence of as the attorney prepared who the will and deed, of a definition involves the notary public as a before whom Lindley, to the Lindley will was executed and witnessed. He facts. Texas (Tex.1964). Ray, also 2 R. Carolyn that Blackburn and T. See C. (3d 1980). Crews This rule is witnessed the execution of the will Evidence ed. § experts Edna well medical and other Granberry, appellee provided that suited to him training information as to what persons knowledge deceased without However, wanted in her will ap- because the deceased it does not legal field. was unable to come to his office at that in this pear appropriate to be for the facts time, and that he “good had a feel” for basis for this rule is case. The fundamental knowing person whether or not a knows proper it is not to allow a witness what is doing. point he We overrule the the facts because apply legal definitions to complaining error of the admission of this witness, legаl training his lack of First, testimony for two reasons. this testi education, legal- properly apply is unable to Second, mony hearsay. is not the trial facts. The ba- correct definitions to the ly court did err in admitting not this evidence case. present in this sis for the rule is objection being because no was made to its applied not be be- The rule itself should hearsay at the time point of trial and this to it. rigid cause of adherence any blind was waived. 4 Re Appellate Tex.Jur.3d to ex- The trend in the law with view 97. § its has been to allow pert opinion evidence helpful jury. if it will be to the objectеd to the ad admission also 702 and 704 dem- mission of Mr. that Edna Federal Rules of Evidence opinion Davis’ Granberry had at the onstrate the evolution of the law towards testamentary capacity Too, it type.1 time of the allowing execution of the documents. in evidence of this issue, qualified expert 1. These Rules are as a witness as an follows: skill, training, knowledge, experience, or educa- Testimony by Experts “Rule 702. tion, may testify thereto in the form of scientific, technical, specialized “If or other opinion or otherwise.” knowledge will assist the trier of fact to under- stand the evidence or to a fact in determine error, opinion 2 R. the admission of this was requirements Ray, meets the § (3d 1980), Texas Evidence ed. entitled “Gen- the facts it he harmless error under would Expert Receiving Opinions eral Test for abundance of this case. is an There justify That rule could Witnesses.”2 health аnd good evidence of the mental opinion trial Mr. Davis’ court’s admission of Granberry at the enjoyed by condition (1) subject of because time of the execution the documents. (2) legal profession, and his related to the in this Our review of all of the evidence skill or was qualification stipu- thаt field amply it case leads us to conclude that court lated both sides. Then the trial All findings this case. supports jury practi- properly apply was authorized to points error are overruled. cal apparently test. The trial court did and judgment is affirmed. appre- concluded that the could receive by receipt ciable aid of this evidence. CORNELIUS, Justice, concurring. Chief already Here testi the witness had agree should be Although I that this case fied to underlying all the facts which form affirmed, the conclusion I cannot consent to testamentary capacity. definition of was of Mr. Davis legal opinion she subsequent expression His had this admitted. properly admitted both capacity opinion and as a rendition of the witness, shorthand regard It that a is well settled *5 facts.' permitted give is to training, his not less of a conclu which opinion an constitutes quali Mr. Davis was shown to be a Mitchell, 350, 31 88 Tex. sion. Brown v. fied field attorney, expert an the R. 621, (1895); Ray, 2 64 S.W. 36 L.R.A. whose qualifications stipulated, were and 1423, (3d 1980), 71 ed. p. Texas Evidence § for court allowed him that reason the trial cited; Evidence Wigmore, and 7 J. cases express concerning to testa opinion the 1940); 23 1952, (3d Tex.Jur.2d p. 81 ed. § trix’s capacity to make a will. We believe 619, there 413, p. and cases Evidence § that the trial court allowed this not rule is that cited. basis for that sense, logical, It makes it is and evidence. training compe the witness lacks the fact, we no find error in its admission. understand law to necessаry tence the expressed it in keeping policy is with the test. and definition apply the supra, jury in Carr v. the Radkey, legal effect for rule is that the reason the given should "... be all relevant com for a matter a facts is not given set of petent testimony with to the mental witnesses, is a matter but oрinions the ”. To condition the testatrix ... hold applied law which is to be decided deny jury otherwise in this case would the 2 R. the case. solely trying by the tribunal within the benefit of relevant matters 1423, (3d 71-72 pp. Ray, Texas Evidence § We find knowledge no witness. J. Wig 7 1980), there cited: ed. and cases abuse of discretion the trial court (3d 1940). 1952, ed. more, p. 82 Evidence would be determining § this evidence of law and question a mixed admitting In the case of helpful and in it. jury fact, capacity, per testamentary However, agreed if such as appellants even we Issue Opinion expert’s testimony (1) Ultimate appear tiсular it must “Rule subject science, that the profession sois opinion or related to some an “Testimony form in the objection- beyond business to be not admissible otherwise inference knowledge average laymen, (2) issue ultimate it embraces because able skill, knowledge witness offerеd has such fact.” by the trier decided be experience particular in the field to make it upon experts received are opinions of 2. “The probable opinion that his will be of assistance experi- study that, theory reason making to the trier the factual determina- inquiry a subject of ence, upon the they have so, being practical tion. This test re- for generally do jurors knowledge which special ceiving subject such is: On the in issue equipped better therefore are possess and jury any appreciable can the receive aid from than facts conclusions draw person offered? ...” par- aof justify use To jurors themselves. mit a witness to state his conclusion would
allow that interpret witness to and apply
for the the legal test involved in the
question, which is properly the exclusive
prerogative of the judge. The rule has
been universally applied attorneys and it
specifically applies to conclusions concern
ing person’s testamentary capacity. Wit testify
nesses to the may bearing upon facts
legal capacity, but not to the ultimate con
clusion. Carr v. Radkey, S.W.2d 806
(Tex.1965); Lindley Lindley,
676 (Tex.1964); 25, p. Tex.Jur.2d Wills §
126; 619, 23 Tex.Jur.2d Evidence p. §
and cases cited. Attorneys may give expert
opinions on legal questions when only they
are testifying about foreign law when it proved
must be as a Ray, fact. 2 R. Texas 1424, p. (3d 1980);
Evidence ed. 7 J. §
Wigmore, 1953, p. (3d Evidence ed. §
1940); 23 Tex.Jur.2d p. Evidence §
and cases cited. agree, however,
I in view of the dp
abundance of supporting evidence testa- case,
mentary capacity in this error in
the admission of Mr. Davis’ opinion did not
constitute reversible error.
HUTCHINSON, J., joins in this concur-
rence. REIFF, Jr., Appellant,
P. J. McGUIRE, Appellee.
William
No. 8863. Texas,
Court of Civil Appeals
Texarkana.
April