Scott v. TownsendScott v. Townsend
- Reporters:
- , , ,
- Before:
- Phillips
The ease is before the court on petition for writ of error, filed in the Court of Civil Appeals prior to July 1, 1913; to have reviewed the judgment of the honorable Court of Civil’ Appeals for the Second District, affirming the judgment of the district court of Tarrant county setting aside the probate by the county court of an instrument therein admitted to probate as the last will of Winfield Scott, and annulling it. Answer having been made to the petition, we may determine the ease.
The suit was instituted by Mrs. Georgia Scott Townsend, the daughter of Scott, joined by her husband, the substance of the allegations of her petition in the district court being that the execution of the purported will, which was dated September 29, 1909, was procured by Mrs. Elizabeth
Eor a proper understanding of the questions dealt with in this opinion and their relation
The testator, Winfield Scott, was a man of robust physique, strong-willed, of good business judgment, and had accumulated by his •own efforts his entire fortune of approximately $3,000,000, according to the inventory and appraisement filed in connection with the probate of his will, his indebtedness at’ the time of his death, after the application of $100,000 collected upon life insurance policies •and used for that purpose, being approximately $800,000. He was in a normal condition of mind at the time he executed the will in dispute, and at all other times to the date of his death, and there was no evidence introduced upon the trial indicative of his want of testamentary capacity. His first marriage was in 1877. The only child of that marriage was the contestant, Georgia Scott Townsend, who was born in 1878, a few weeks before the death of her mother. In the year 1884 he married Mrs. Elizabeth Scott, the mother of Winfield Scott, Jr., the only child of that marriage, born in November, 1901, and accordingly about eight years old at the time of the execution of the will in September, 1909. Following the death of her mother in 1878 Mrs. Townsend lived with her grandparents in Missouri until September, 1886, when she was placed by her father and stepmother, Mrs. Elizabeth Scott, in the Ursuline Convent, a school at Dallas, Tex. She attended this school for several years, thereafter living with her father and Mrs. Scott until her marriage in 1897 with John T. Carter, which was contracted in opposition to the wishes both of her father and Mrs. Scott. During this marriage she lived in Dallas. She married her present husband, John R. Townsend, in 1905; their minor child being the Winfield Scott Townsend referred to in the will.
On March 4, 1898, Mrs. Townsend, then Mrs. John T. Carter, joined by John T. Carter, executed to her father a deed conveying to him her inherited interest in the community estate of his first marriage. It
On April 6, 1903, her father conveyed to Mrs. Townsend, then Mrs. Carter, lots 8 and 16 in block B-7, Daggett’s addition to the city of Ft. Worth, extending between Main and Houston streets with a depth of 200 feet and a frontage of 50 feet upon each street, reciting as- its consideration her and her husband’s conveyance to her father of lots 1 and 2 in block 115, which, as stated, had been conveyed to her in 1895. Scott gavet to Mrs. Townsend during her first marriage a home in Dallas costing $8,000, and later another home in Colorado Springs, Colo., costing $11,-500, and from time to time money for her personal expenses, automobiles, a horse and buggy, jewelry, etc.
The will was executed by Scott, in September, 1909, as stated, at Ft. Worth, approximately two years before his death, which occurred at Ft. Worth in October, 1911. At the time of its execution he was temporarily residing with his wife and min ox-son in St. Louis, Mo., later resuming his residence at Ft. Worth. He had spent the summer of that year in Europe with Mrs. Scott and the boy, Winfield Scott, Jr., accompanied by a colored nurse, Rose Hill, the witness hereafter referred to by that name, the party returning to St. Louis early in September. After his return he made a trip to Ft. Worth, arriving there about September 24th, and while there the will was prepared, and, on the 29 th of September, 1909, executed. A few days before the date of its execution Scott carried to Judge George Miller, his attorney, a former will, executed in 1905 and then in force, with a list of the property he desired to devise to each beneficiary, and employed and directed him to prepare the will in controversy. It was prepared by Judge Miller accordingly, with a codicil attached to the original draft at Scott’s specific direction, the will and the codicil both being read over to him before execution. At this time Mrs. Elizabeth Scott was in St. Louis; her return to Ft. Worth not occurring until the January following. The beneficiaries named in the will are the testator’s wife, Mrs. Elizabeth Scott, his son, Winfield Scott, Jr., his daughter, Mrs. Townsend, the contestant, and her son, Winfield Scott Townsend. Mrs. Scott
The will recites that a large part of the property held by the testator was community property of himself and Mrs. Elizabeth Scott; that he had theretofore caused to be transferred to her as her separate property certain lots in the city of Ft. Worth, designated in the will, which had been paid for out of their community funds, and which were of the aggregate value of $500,000. There fol
In respect to Mrs. Townsend the will recites that the value of the community estate of the testator and her mother, his first wife, was approximately $20,000‘; that during her infancy he had supported and educated her in a manner suitable to her social station, and at an expense of more than the income of her part of such community estate, and that in settlement of her interest in the community estate of her mother and himself, and as an advancement out of his own estate, he had given her lots 8 and 16 in block B-7, Daggett’s addition to the city of Et. Worth— the same property described in his deed to her of April 6, 1903, above referred to, and in return for which conveyance it appears Mrs. Townsend, then Mrs. Carter, had deeded to him the property previously conveyed to her by his deed of March 12, 1895 — which were of the value of more than $200,000; and that he had also given her a home in Denver, Colo., wherein she then resided with her husband and son, of the value of $15,000.- There follows this recital a devise to Mrs. Townsend of a life estate in four and a fraction lots in Ft. Worth, specifically described, with remainder over after death to her son, Win-field Scott Townsend, and any other child or children thereafter born to her, upon which the appraisers fixed a valuation of approximately $90,000.
It was shown that the separate property of Mrs. Elizabeth Scott, which the will recites as having been previously transferred to her, yields in rents approximately $2,500 per month, and that the property recited in the will as having been previously given by the testator to Mrs. Townsend, viz., lots 8 and 16 in block B-7, Daggett’s addition in the city of Et. Worth, still owned by her at the time of the testator’s death, was before that time yielding in rents $1,000 per month.
The property devised by the will to Win-field Scott, Jr., consisted of property in Ft. Worth, specifically described, and all lands then owned by the testator, or which might thereafter be acquired by him in Tarrant county outside of the corporate limits of Ft. Worth, and in Johnson and Parker counties, constituting his ranch. The valuation fixed by the appraisers upon this property was approximately $1,675,000.
The devise to Mrs. Elizabeth Scott is absolute, but with the request
The codicil provides that if the testator shall survive Mrs. Elizabeth Scott, all of the property devised to her under the will shall go to Winfield Scott, Jr., subject to the same conditions imposed in the devise made to him in the will.
’ The inventory of the estate filed by the executors recited that all of the property included within it was the community property of the testator and Mrs. Elizabeth Scott, and that she reserved the right to thereafter determine whether she would elect to accept under the will or claim her community interest.
The last illness of the testator was of about three weeks’ duration. Mrs. Townsend was then living at Denver, and was not informed of her father’s illness until she received a telegram from his private secretary on the day of his death, sent on the preceding day to Denver and forwarded to Kansas Oity, where she was visiting. During such illness the testator called for his daughter,
Evidence was introduced indicative of hostility upon the part of Mrs. Scott toward Mrs. Townsend, extending over a considerable period. Mrs. Scott testified that their relations were pleasant, and that she entertained feelings of parental regard for Mrs. Townsend at all g times. It does not seem to be disputed that Scott cherished an affection for his daughter, Mrs. Townsend, and it was shown that he had expressed an intention to make liberal provision for her in his will. Other evidence was to the effect that he desired the bulk of his property to go to his minor son, Winfield Scott, Jr., and that he made his will to accomplish that purpose; that he was satisfied with it, and desired that its provisions be carried out. The Court of Civil Appeals has also found that there was direct and positive evidence in the case tending to show an effort on the part of Mrs. Scott to unduly influence the testator to so make his will as to exclude Mrs. Townsend fro-m a share in his estate.
The principal question presented by the petition for writ of error is that of the admissibility of certain declarations of the testator, testified to by various witnesses tendered by the contestant, admitted by the court as probative of the state of his mind at the time of his execution of the will, and therefore competent as tending to prove that the alleged undue influence was effectively exercised and produced the will as its result, an essential part of the issue made by the contest. It is unnecessary in this case to enter upon any general review of the subject of the competency as proof of the declarations of a testator in a will contest, a subject, it may be said, which has commanded as much attention and upon which there has been expressed as much pronounced diversity of view as any within the entire field of judicial decision ; but that there may be no confusion in applying to these declarations the rule of this court upon the subject, it is important that there be no doubt as to what is the rulé. Its determination is deemed advisable, therefore, at the threshold of the case, a course suggested by the conflict of views urged in the argument, both in relation to the true rule and its application, as well as to the effect of previous decisions of the court.
In Robinson v. Stuart, 73 Tex. 267, 11 S. W. 275, where the issue was both undue influence and mental incapacity, it was held that declarations of a testator, there shown to have been made in a letter written before the execution of the will, indicative of hostility toward the principal legatee, are admissible; Johnson v. Brown being cited in support of the ruling, as well as Kennedy v. Upshaw, 66 Tex. 450, 1 S. W. 308.
In McElroy v. Pbink, 97 Tex. 147, 76 S. W. 753, 77 S. W. 1025, the proceeding was to probate a will alleged to have been lost. Its probate was contested upon the ground that the will had been revoked by the testatrix. Her declarations that she had sent for the will and destroyed it, as well as her declarations complaining of ill treatment at the hands of the principal beneficiary, were held to be admissible as tending to prove that the testatrix had revoked the will. In Chief Justice Gaines’ opinion in that case, Kennedy v. Upshaw, 64 Tex. 411, holding as inadmissible a declaration of a testator, made after the date of an alleged codicil, which was charged to have- been forged, to the effect that he had not changed his will, was reviewed, as was also Throckmorton v. Holt, 180 U. S. 552, 21 Sup. Ct. 474, 45 L. Ed. 663, holding that a testator’s declarations, not a part of the res gesta», were not admissible upon the issue of forgery, and, as evidencing a state of mind, are competent only where the issue is his mental capacity. Kennedy v. Upshaw was apparently distinguished upon the ground that the declaration there considered amounted to the statement of a mere legal conclusion, and Throckmorton v. Holt was distinctly not followed, its doctrine being in effect clearly rejected by the conclusion reached and announced by the court upon the question before it, in support of which Johnson v. Brown and Tynan v. Paschal, 27 Tex. 286, 84 Am. Dec. 619, were cited. These
How, then, under the issue is the further essential fact — that the influence was successfully practiced, to the subversion of the testator’s free agency, and produced the will as its result — to be established or disproved? His declarations that the will was thereby procured, or that the instrument was not his will, or his statements of like nature, are, of course, inadmissible, since his declarations are not competent to prove the fact of undue influence, or as direct evidence that it produced the will. But where there is competent evidence of the exercise of undue influence, the issue as to whether it was effectually exercised
The important consideration to be observed, however, in this connection is that the declarations be such as reasonably tend to disclose what the state of the testator’s mind was at the very time of his making the will: If, for instance, they are shown to have been made at a time not in reasonable proximity to its execution, their remoteness condemns them as any efficient or trustworthy aid in determining what his state of mind then was, and they should be excluded for that reason alone. Furthermore, though they are shown to have been made within such reasonable period, unless they are reasonably indicative of what his mental state was at that time, they constitute no evidence upon this part of the issue and should be rejected. The alleged acts of undue influence or attempts to practice it, the attitude toward each other of parties affected by the will, and other matters of that kind, though relevant to the main issue, can no more be proved by recitals found in the testator’s declarations than through the unsworn statements of any other person. His declarations concerning such matters are hearsay, just as they would be if made by any other third party. At this state of the proceeding the law is concerned solely with ascertaining what
We have thus dealt with the general question in an effort to present what we conceive is the true relation and proper use, as evidence, of a testator’s declarations in a will
Bose Hill, the negro woman employed as a nurse for the minor son of the testator, was permitted to testify as a witness for the contestant, over objection, that just before the family went to Europe in June, 1909, the testator said to her that “Mrs. Scott had been after him to make a will.” In permitting this declaration of the testator to be proved, the trial court instructed the jury that it was admitted only for the purpose of showing, or tending to show, if it did, the condition of the testator’s mind at the time of the execution of the will, and should be considered for no other purpose. A charge to the same effect, in substance, was given, embracing in its reference all of the declarations of the testator admitted in evidence. Bose Hill is shown to have been an important witness in the case. She had previously testified to an occurrence upon the boat between the testator and Mrs. Scott during the return trip from Europe early in September of the same year, on the 29th of which month the will was made, when, according to her testimony, “there were some very important papers mentioned by Mrs. Scott, and Mr. Scott did not seem to be very anxious to sign some papers; I don’t know what it was. Mrs. Scott had some business she wanted him to attend to; I don’t remember what it was; I cannot say exactly what it was, but I know she threatened him with taking the child away from him if he did not sign the things she wanted him to do; threatened to take Winfield, Jr., away from him.” The theory of the contestant was that the will was the paper Mrs. Scott was endeavoring to have her husband execute, according to the testimony just related; while Mrs. Scott testified that there were no business papers or instruments of any kind that she asked the testator to sign while they were on
In what way did this declaration of the testator that “his wife had been after him to make a will” tend to prove his state of mind, either at that time or when the will was made, so as to subject it to consideration upon that question to the exclusion of other issues? Or, in the use of the expression that she had been “after” him, how was it capable of conveying to the minds of the jury any other idea than that his wife had been importuning him to make his will, or had been engaged in a persistent effort to that end? Did it suggest any fear or
The argument has been made that the fact alone that the testator gave utterance to the declaration was proof tending to show the effect of the alleged undue influence upon his mind, or, in other words, that the fact that he said to this witness, in June 1909, that “his wife has been after him to make a will,” tended to show that his mind was under her influence. This course of reasoning is probably ingenious, but is unsound, unless we are prepared to admit that any recital by a man of something his wife or some other person had been trying to get him to do is for the same reason indicative of a condition of mental constraint. We know, however, that such recitals in themselves convey no such indication, and common reason forbids any such significance being attached to these. If the bare narration of another’s importunity is to be received as an evidence of mental coercion or restraint, the validity of any will is subject to be determined according to the mere discretion of the testator’s utterance rather than the exercise of free agency in its execution. No reference could be made to only the commonplace confidences of the marital relation except at the peril of such a statement being later used as a revelation that one of the parties had been victimized into a state of mental humiliation and subjection. The oftener the husband or wife might speak of the other’s desires or efforts in regard to those things that might properly concern them both the stronger
James W. Coffee, a witness for the contestant, was permitted to testify to a declaration of the testator made to him in the spring of 1909, which included the statement “that his wife had always wanted him to make his will, and that his wife did not like Georgia,” meaning Mrs. Townsend, the contestant.
John F. Baker, Jr:, an agent for the testator and in charge of his correspondence, in November, 1906, was permitted to testify to a declaration made by him at that time to the witness in respect to keeping his mail from Mrs. Scott unless he was there, which included a statement “that there was a feeling between Mrs. Scott and his daughter which it was unnecessary for him to go into.”
Floyd E. Singleton, who was in his employ’ as a stenographer, testified to a declaration of the testator, made in April or May, 1910, which included the statement “that Mrs. Scott and Mrs. Townsend did not like each other, and that Mrs. Scott did not like Mrs. Townsend.”
The testator’s declarations indicative of his feelings toward his daughter were clearly admissible, as we have stated. The testimony of the witness Mrs. Squire of ‘declarations of the testator made in October, 1909, set forth in the twenty-first and twenty-second bills
We entertain the same opinion in respect to the further testimony of this witness, which is made an additional ground of the application for the writ of error, to the effect that “Mrs. Scott had several times threatened her husband to take their son and go away if he did not do the things she wanted done, and that he never wanted to do the things she asked him to do, and that she stated that quite often, and that Mr.
Testimony offered by the contestant of certain statements or declarations of Mrs. Scott,made out of the presence of the testator, was permitted. In the main they were expressive of hostility or unfriendly feeling on her part toward Mrs. Townsend. One of them, stated to have been made shortly after the marriage of the testator’s daughter to John T. Carter, was, “I am certainly glad that Georgia has married and that it has happened, because Mr. Scott promised me to cut her off entirely.” Another, stated to have been made in 1907, was, in substance, that “she did not want Mrs. Townsend and her husband to come to the Eat Stock Show at Ft. Worth, to which the testator had invited them; that she did not like any of Mr. Scott’s people; that they were not her kind; that’ the testator had done too much already for Mrs. Townsend, and that she did not want him to do any more; that what Mr. Scott had at that time belonged to her and Winfield, and that testator had already given Mrs. Townsend all that she was entitled to at the time of her mother’s death, and she did not want him to give her any more; and that the testator had already promised her that he had made all the provision he was going to make for her.” Another was stated to have been made after the occasion of a visit by Mrs. Townsend’s husband to the Scott home in St Louis in 1909, at which time, according to the witness, Mrs. Scott said that “Mr. and Mrs. Townsend need not be watching around to see what they could get out of Mr. Scott, because she would see that they did not get any more than they
The fact of hostility of a beneficiary charged with the wrongful procurement of a will, toward one excluded under it, and his design to accomplish such exclusion, being necessarily provable, in such a case, against every interest claimed under the will, how may it be properly proved? We know that in the general sense it is only capable of being fully proved by showing, not only the conduct of such a beneficiary, but by evidence of his statements, as well, in that connection. Are such declarations hearsay as to another beneficiary, not involved in the alleged wrong, and whose interest under the will is several, but who is before the court seeking to uphold it? Whatever might be affirmed as a general rule upon the subject, it is clear to us that, for the purpose we have stated, these declarations of Mrs. Scott are not to be here so considered. A part of the design charged against her in the case was to procure a will in which her son would be a principal beneficiary, as well as containing favorable provision for herself. A part of her purpose is alleged to have been directed to the disinheritance, practically, by the testator of the contestant, his daughter. To accomplish both purposes she is charged with having procured the wiH by her exercise of undue influence over him. She was a party to the suit and a proponent of the will. Under these circumstances her declarations, tending to show hostility on her part toward the contestant and a design to bring about her exclusion from the estate, and therefore affording proof of motive for the exertion of undue influence over the testator, were admissible both against herself and the other beneficiary for the purpose stated, though we think it proper for the court to limit the testimony accordingly. We do not regard it as necessary to review the authorities cited upon the question by the plaintiffs in error. Some of the cases do not relate to the question as it is here presented, though others directly support their position. There is marked conflict, as we have said, upon the general question; but the following may be cited in support of this holding: Williamson v. Nabers, 14 Ga. 286; Gibson v. Sutton (Ky.) 70 S. W. 188; Shepardson v. Potter, 53 Mich. 106, 18 N. W. 575; Brown v. Moore, 6 Yerg. (Tenn.) 272; Crocker v. Chase, 57 Vt. 413; Peeples v. Stevens, 8 Rich. (S. C.) 198, 64 Am. Dec. 750; Mullen v. Helderman, 87 N. C. 471; Lundy v. Lundy, 118 Iowa, 445, 92 N. W. 39.
On account of the erroneous admission of the testimony we have indicated, the judgments of the district court and the honorable Court of Civil Appeals are reversed, and the cause remanded. We have discussed the other testimony as a ruling for the further trial of the case.
Reversed and remanded.