OPINION
This is a will contest case filed by Appel-lees Henderson Fillmore Horton, Mitchel Montgomery “Babe” Horton, and Eric Wayne Horton, the sons and grandson of the deceased, Henderson “Pete” Horton. Appellant Melba Jean Horton, the deceased’s wife, challenges the trial court’s order setting aside Pete’s will and revoking the letters testamentary issued to Melba on February 7,
BACKGROUND
Pete and Melba married on December 22, 1975. During the marriage, Pete executed four wills. In 1977, Pete wrote a holographic will leaving his entire estate in fee simple to Melba. Pour years later, he drew another holographic will, this time leaving his personal property to Melba outright and his real property to her for life, remainder to be divided equally between Pete’s two sons from a previous marriage, Fillmore and Babe, and Melba’s son and daughter from a previous marriage, Debra Jean Voyles King and James Michael Voyles. In 1991, Pete and Melba executed a joint and contractual will that left all personal property to the surviving spouse in fee simple and all real property to the survivor for life, remainder to Pete’s two sons and Melba’s son and daughter. On December 30,1993, Pete and Melba executed a second joint and contractual will, under which all property would pass to the survivor in fee simple. In the event the survivor-decided to sell the real property, a provision in the 1993 will granted a first option to purchase to Pete’s sons and Melba’s daughter and son.
Pete died on January 20,1994, survived by Melba, Fillmore, and Babe. Pete is also survived by Appellee Eric Horton, the only child of Pete’s son Samuel who died in 1977. On January 26, 1994, Melba filed an application to probate the 1993 will. The trial court admitted the will to probate and Melba qualified as independent executor on February 7, 1994.
On September 30, 1994, Appellees filed a motion for summary judgment to set aside the order admitting the will to probate, asserting that the will’s self-proving affidavit was fatally defective because the witnesses, Teresa Weaver and Lana Osteen, failed to “swear” to the truth of the affidavit as required by section 59 of the Texas Probate Code. Tex. PROb.Code Ann. § 59 (Vernon Supp.1998). The trial court denied Appel-lees’ motion for summary judgment on October 7,1994.
On June 26, 1995, Appellees filed an amended petition alleging that Pete lacked testamentary capacity to execute the will and that Melba procured the will through undue influence. Appellees also petitioned the trial court to impose a constructive trust on a 180-acre tract of land, one-half of which Pete had conveyed to Melba by deed on April 20, 1989, and the remaining one-half of which Pete devised to Melba under the 1993 will. On June 30, 1995, Melba filed a motion for partial summary judgment, alleging that the statute of limitations and the parol evidence rule barred Appellees’ suit for a constructive trust. The trial court issued an order granting the motion for partial summary judgment on December 5,1995.
The remaining issues were tried to a jury on June 18, 1996, at which time Appellees presented the following testimony:
James Spiller, the attorney who drafted the 1991 and 1993 wills, testified that he initiated the conversation about changing the life estate provision in the 1991 will with Melba and suggested that she and Pete discuss the effect of that provision. Spiller said that he was concerned Melba might have problems paying off the note on the real property after Pete died and would be unable to sell the property because of the remainder interest.
Spiller also testified about the execution of the 1993 will. He said that the Hortons executed the will at their home and that Pete read it before he signed it, and then Spiller read it aloud to Pete, Melba, and the two
In addition, Spiller testified that Pete was still conducting his own business affairs in December 1993. Spiller also said that he believed Pete was very strong-willed and Melba could not have coerced him to sign the will if he had not wanted to. Last, he testified that Pete had specifically said that he did not want to leave anything in his will to his grandson Erie.
Melba testified that Pete had thyroid cancer and that a C.A.T. scan during the first week of January 1994 revealed that the cancer had spread to his brain, skull, and bones. She said that in mid-December 1993, Pete began taking morphine and MS-Contin for pain relief and Zoloft, an anti-depressant. Melba stated that although she believed that the medications must have affected Pete’s mental capacity to some degree, she could not tell that they did. She testified that Pete continued to handle all the family business despite his illness, and he was still serving as Jack County constable in December 1993. She said that following a chemotherapy treatment in January 1994, Pete was confused at times, but usually acted alert and continued to handle his business affairs. Although Melba said that Pete hallucinated at times, she testified that such episodes occurred infrequently and only caused Pete to imagine things on the bedspread that were not actually there. She could not recall any specific times when those episodes occurred, except that Pete had been hallucinating before he was admitted to the hospital on January 19,1994.
Melba further testified that Spiller brought up the potential problem with the life estate provision in the 1991 will and asked her to discuss it with Pete. She said that after talking about it with Pete, she called Spiller and asked him to prepare the will without the life estate. •
Regarding the execution of the will, Melba testified that Spiller gave Pete a copy of the will and Pete read it, then Spiller read the will aloud to everyone present. She said that Pete had not taken any medication prior to executing the will that would have prevented him from understanding the contents of the will, or from objecting if he did not want to sign it. Melba also testified that Pete was set in his ways and would not have signed the will if he had not wanted to. She said that Pete was headstrong and not easily influenced by others, and that his illness did not change those character traits.
Babe, Pete’s youngest son, testified that when he visited his father during the last two months of Pete’s life, sometimes Pete would “just go to mumbling” and “wouldn’t make no sense [sic].” However, Babe testified that he never saw his father do anything else that he considered irrational. Babe said that Melba brought pills to Pete and Pete kept liquid medication beside the bed which he occasionally drank. Nevertheless, Babe said that he could not discern any difference in his father’s behavior after he took the medicine, and he did not know whether his father was taking the medicine on December 30, 1993.
Babe testified that he saw his father practically every day during the last two months of his life, but he did not remember seeing him on December 30,1993. He also testified that the last time he remembered seeing Pete before the day the will was executed was December 24,1993.
Fillmore, Pete’s middle son, testified that after his father returned from chemotherapy treatments in Houston in early January 1994, he did not seem to be himself. Fillmore said that the last few times he saw his father, Pete’s mental capacity appeared to be affected by the pain he was in and the medication he was taking. Although Fillmore testified •that he believed Melba could influence Pete, he acknowledged that Pete was stubborn, strong-willed, and not easily dominated by other people, and said that he had never seen
Teresa Allen, a nurse at the Jacksboro Nursing Center, testified that she saw Pete on January 10, 1994, after he returned from the chemotherapy treatment in Houston. According to Allen, Pete acted confused and disoriented. She also testified that she saw Pete at his home on Christmas Eve 1993 and he was very sick. She did not recall seeing him on December 30,1993, and did not know what his condition was on that day.
Lee Ann Horton, Babe’s wife, testified that Pete was extremely weak and in a great deal of pain on December 24, 1993. She also testified that her father-in-law was strong-willed, bull-headed, and not easily swayed. Last, she testified that she did not see Pete on December 30,1993.
Appellees called three additional witnesses: Pete’s grandson Eric, who testified that he had not communicated with his grandfather in more than 10 years; John Rudder, a registered pharmacist, who testified regarding the types of medications prescribed to Pete; and Dr. James Womack, who testified regarding Pete’s medical condition based on a review of his medical records. Both Rudder and Womack testified that they never physically examined Pete or discussed Pete’s condition with anyone who had examined him.
After Appellees rested, Melba’s counsel moved for a directed verdict, which the trial judge denied. Melba proceeded with her case and called the following witnesses:
Linda Loncar, a retired schoolteacher, testified that she visited Pete at his home on December 30, 1993. She said that Pete was bright and alert, and not groggy or sleepy. She also testified that in her opinion, Pete had not taken any medication that day. Lon-car said that she had known Pete for many years and she believed that he was not easily dominated by other people.
Armanda Plaster, Pete’s older sister, testified that she had known Pete all his life and Pete always “did what he wanted to do the way he wanted it done.” She also said that in her opinion, no one told Pete what to do and his illness did not change that fact. Plaster testified that despite the cancer, Pete continued to handle all of his own business dealings until the day he died.
Frank Gilliam testified that he had known Pete for eighteen years and Pete could not have been manipulated to do something he didn’t want to do. He testified that Pete was strong-willed and continued to handle his own business affairs even after he became ill. Gilliam also testified that he saw Pete during the first week of January 1994 and Pete did not appear to be medicated. He said that he and Pete discussed business during the visit and Pete calculated the money due on a line of credit he carried for Gilliam.
James Hammond testified that he had known Pete for twenty-five years and Pete was not easily swayed by others. He also testified that he did not believe Melba could have coerced Pete to do something he did not want to do.
Dr. Sushil Chokshi testified that he was Pete’s physician and he had known Pete for several years. He said that when he examined Pete in his office on December 17,1993, Pete appeared to be in full control of his mental capacity. Chokshi also stated that he did not believe the medications prescribed to Pete had impaired his ability to know his surroundings or his family. Last, Chokshi testified that when Pete was admitted to the hospital on January 19, 1994, the day before he died, family members told Chokshi that Pete was hallucinating at times.
Boyce Hart testified that he had known Pete all his life and Pete was not easily swayed or dominated by others. Hart also stated that during the months of December 1993 and January 1994, he noticed no change in Pete’s demeanor.
Teresa Weaver, one of the witnesses to the 1993 will, testified that she had known Pete since 1977 and she did not believe that Melba could have made him sign the will if he had not wanted to. She also testified that Spiller read the will to Pete and Pete asked some questions about the will before signing it, which Spiller answered. Regarding the execution of the will, Weaver said she believed that Pete knew who his family was, what he owned, what he was doing in signing the will,
Jo Ellen Rater testified that she had known Pete for four years and did not believe that Pete could be made to do anything he did not want to do, and that his illness did not render him more easily influenced.
Joveta Forbis testified that she had known Pete for fifteen or twenty years and that Pete was not easily influenced by other people or coerced into doing something he did not want to do, even after he became ill.
Lana Osteen, the second witness to the 1993 will, testified that she had known Pete for fourteen years. Osteen also testified that Spiller gave Pete the will to read and Pete had a question about it, which Spiller and Pete discussed. She testified that Pete appeared to be mentally competent and did not appear to be drugged or drowsy. Last, Os-teen said that she saw no indications that Pete was reluctant to sign the will or that Melba was making him sign something he did not want to sign.
Charles Pugh, Pete’s pastor, testified that he had known Pete for four years and visited about once a week after Pete became ill. Pugh testified that although Pete was physically weak, he always appeared to understand everything that was going on around him and at no time did he appear to be groggy or hallucinating.
Following Pugh’s testimony, Melba rested her case. The jury found that Pete lacked testamentary capacity to execute the 1993 will and that Melba had procured the will through undue influence. Melba’s attorney requested a judgment n.o.v. on the issues of testamentary capacity and undue influence. The trial court granted the motion for judgment n.o.v. on the first issue, but allowed the jury verdict to stand on the issue of undue influence. Melba’s counsel thereafter filed a motion for new trial on the issue of undue influence, which the trial court denied.
On appeal, Melba asserts that the trial court erred in denying her motions for a directed verdict, for judgment n.o.v., and for new trial because there was no evidence to support the jury’s finding that the 1993 will was procured by undue influence. In a fourth point, she argues that the court erred in refusing her motion for new trial because the evidence was insufficient to support a finding of undue influence. i,
In addition, Appellees bring three cross-points on appeal. First, they argue that there was some evidence to support the jury’s finding that Pete lacked testamentary capacity and thus the trial court should have denied Melba’s motion for judgment n.o.v. on that issue. Second, they argue that the trial court erred in denying their motion for summary judgment because the will’s self-proving affidavit was fatally defective. Last, they contend that the trial court’s order granting Melba’s motion for partial summary judgment on Appellees’ petition for a constructive trust was improper. We turn first to Appel-lees’ contention that the trial court erred in granting Melba’s motion for judgment n.o.v. after the jury determined Pete lacked testamentary capacity.
STANDARD OF REVIEW
A trial court may render judgment n.o.v. if a directed verdict would have been proper and may, upon motion and notice, disregard any jury finding on a question that has no support in the evidence.
See
Tex.R. Civ. P. 301. A directed verdict is proper only under limited circumstances: (1) a specifically indicated defect in the opponent’s pleading makes it insufficient to support a judgment; (2) the evidence conclusively proves that the movant is entitled to judgment as a matter of law; or (3) the evidence is legally insufficient to raise an issue of fact.
See Boswell v. Farm & Home Sav. Ass’n,
A motion for judgment n.o.v. should be granted when the evidence is conclusive and one party is entitled to judgment as a matter of law.
See Mancorp, Inc. v. Culpepper,
If more than a scintilla of competent evidence exists in support of the jury’s finding, that finding must be upheld and the judgment n.o.v. will be reversed.
See Mancorp,
TESTAMENTARY CAPACITY
In a will contest case filed after the will is admitted to probate, the burden of proof is on the party contesting the will to establish that the testator lacked testamentary capacity.
See Lee v. Lee,
In a will contest case, the proper inquiry is whether the testator had testamentary capacity on the day the will was executed.
See Lee,
Evidence of physical infirmities, without more, does not tend to prove that a testator is incapable of knowing his family or his property, or understanding the effect of signing the will. The fact that a testator consumed pain medication on the day he executed the will in question is likewise insufficient to prove a lack of testamentary capacity, without some evidence that the medication rendered the testator incapable of knowing his family, his estate, or understanding the effect of his actions. In this case, Appellees offered no evidence that Pete’s pain medication or physical problems impaired his testamentary capacity. As a result, the only evidence in this case that could possibly support the jury’s finding that Pete lacked testamentary capacity is the testimony that Pete was hallucinating and disoriented at times.
As stated above, it is not enough to show that a testator lacked testamentary capacity on some days without also showing that the condition probably persisted on the day the will was executed.
See Croucher,
UNDUE INFLUENCE
With the question of the Pete’s testamentary capacity settled, we turn to the issue of undue influence. In Melba’s first point, she asserts that the trial judge erred in failing to grant her motion for a directed verdict on this issue. However, the law is well settled that a defendant who moves for a directed verdict after the plaintiff rests, but thereafter proceeds with her own case, waives her motion for directed verdict unless the motion is reurged at the close of her case.
See Jacobini v. Hall,
In Melba’s second and third points, she asserts that the trial court erred in denying her motions for a judgment n.o.v. and a new trial on the issue of undue influence. Specifically, she contends that there was no evidence to support the jury’s finding that she procured the 1993 will through undue influence. The burden of proving undue influence rests on the individual contesting the
It is important to note that not every influence exerted by one person on the will of another is undue.
See Long v. Long,
Generally, to establish the exertion of an undue influence, the relevant inquiry includes an examination of numerous factors, including whether the accused party had an opportunity to exercise the type of influence or deception that is alleged, the circumstances surrounding the drafting and execution of the will, and the existence of a fraudulent motive. See id. The court should also consider whether the will makes an unnatural disposition of property, considering the nature and type of relationship existing between the testator, the contestants, and the party accused of exerting such influence. See id Other relevant factors are whether the testator has been habitually subjected to the control of the accused party, whether the testator was mentally or physically capable of resisting the accused party, the words and acts of the testator, and the weakness of the testator’s mind and body. See id. As with a challenge to testamentary capacity, the circumstances relied on to establish undue influence must be of a reasonably satisfactory and convincing character, and must not be equally consistent with the absence of such influence. See id. “This is so because a solemn testament executed under the formalities required by law by one mentally capable of executing it should not be set aside upon a bare suspicion of wrongdoing.” Id. at 922-23.
In the present case, Appellees rely on circumstantial evidence to support their contention that Melba procured the 1993 will through undue influence. Specifically, they argue that the circumstances of the will’s execution were suspicious because the will was signed at the Hortons’s home rather than in the attorney’s office, and because Pete did not read the will until five minutes before he signed it. Furthermore, they assert that Melba controlled Pete because she was Pete’s primary caregiver and they lived alone in the country. Appellees also argue that Pete was under heavy medication at the time the will was executed, he was extremely ill, and the will made an unreasonable disposition of Pete’s property that was inconsistent with his prior wills.
With Appellees’ allegations in mind, we find the following passage from Rothermel to be instructive:
It is the law in Texas that a will cannot be set aside on proof of facts which at the most do no more than show an opportunity to exercise influence. The establishment of the circumstances of having an opportunity to exert such influence due to being in a position of caring for the person upon whom the influence is supposed to be exerted is equally consistent with the theory of innocence as it is with the theory of wrongdoing. The exertion of influence that was undue cannot be inferred alone from opportunity, but there must be some testimony, direct or circumstantial, to show that influence was not only present but that it was in fact exerted with respect to the making of the testament itself.
Id. at 923 (emphasis added) (citations omitted).
The undisputed evidence in the present ease established that Spiller, not Melba, suggested that the Hortons consider modifying the life estate provision in the 1991 will. The fact that Pete changed his will to leave all of
The evidence also establishes that Pete had cancer and was in considerable pain most of the time. TMs evidence may be considered regardmg Ms physical incapacity to resist or the susceptibility of Ms mind to an influence exerted. However, although the evidence indicates that Melba had opportumty to exert influence over her husband in the execution of the will, there is simply no evidence that she did so. Likewise, there is no evidence that would tend to prove that Pete’s mind was in fact subverted at the time he executed the will.
Indeed, thirteen witnesses testified that despite Ms ilMess, Pete was headstrong, not easily swayed, and could not be coerced into domg somethmg he did not want to do. Only Fillmore said that he thought Melba could influence Pete. However, mere speculation on tMs issue is not evidence that Melba actually exerted such influence over Pete or that Pete in fact submitted to such influence. Because there was no evidence to support the jury’s finding that Melba procured the will through undue influence, the trial judge erred in denying Melba’s motion for a judgment n.o.v. Accordingly, we sustain Melba’s second point. We now turn to Appellees’ remaining cross-points.
APPEAL FROM DENIAL OF SUMMARY JUDGMENT
In their second cross-point, Ap-pellees claim that the trial court erred m overruling their motion for summary judgment because the will’s self-proving affidavit was invalid. In general, the demal of a motion for summary judgment is not a final judgment and therefore is not appealable.
See Cincinnati Life Ins. Co. v. Cates,
CONSTRUCTIVE TRUST
In their third cross-point, Appellees contend that the trial court erred in granting Melba’s motion for partial summary judgment on their petition for a constructive trust. Appellees assert that there were genuine issues of material fact that preclude a summary judgment on tMs issue. However, Appellees fail to state what those issues were or cite to any references in the record to support their contention. Under rules 38.1(h) and 38.2(a)(1) of the Texas Rules of Appellate Procedure, every brief must contain a clear, concise argument in support of its contentions, including appropriate citations to authorities and to the record.
See
Tex.R.App. P. 38.1(h) & 38.2(a)(1). By raising an issue and failing to present any argument or authority on that issue, the party waives that issue.
See Patton v. Saint Joseph’s Hosp.,
Because we find that (1) there was no evidence to support the jury’s finding that Pete lacked testamentary capacity, (2) Appel-lees may not appeal the denial of a motion for summary judgment, and (3) Appellees failed to adequately brief their third cross-point, we overrule Appellees’ first, second, and third cross-points. In addition, because Melba went forward with her case following her motion for a directed verdict on the issue of undue influence, we find that she waived that motion and thus her first point is overruled. However, because there is no evidence to support the jury’s finding that Melba exerted undue influence in the execution of the will, we find that the trial court should have granted her motion for judgment n.o.v. on that issue and we sustain her second point. 1
When we sustain a “no evidence” point, it is our duty to render judgment for the appellant because that is the judgment the trial court should have rendered.
See
Tex.R.App. P. 43.3;
United Mobile Networks, L.P. v. Deaton,
Notes
. In light of our holding, we need not reach Melba’s third and fourth points.