
    HILL et al. v. CROW.
    (No. 2553.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 11, 1922.
    Rehearing Denied May 18, 1922.)
    1. Wills <§=>55(5) — Evidence held insufficient to prove want of testamentary ciapacity of 60 year old testatrix suffering from dropsy.
    In action to set aside judgment probating will executed by 60 year old testatrix who was afflicted with dropsy and prior to execution of will had at times fallen into a stupor, evidence held insufficient to prove that she was not possessed of testamentary capacity at the particular time the will was executed.
    2. Wills <@=>166(1) — Evidence held not to prove undue influence.
    Evidence held insufficient to prove that wife’s will giving wearing apparel and personal property to daughters of very dear friend, and giving husband life estate in land with remainder to such daughters, was procured by undue influence of such children.
    Appeal from District Court, Cooke County ; C. R. Pearman, Judge.
    Suit by Richard Crow against Bessie Belle Hill and others to set aside probate of will. Judgment for plaintiff, and defendants ap1-peal.
    Reversed and remanded for new trial.
    Tisha Crow, wife of appellee, Richard Crow, died December 17, 1919, leaving a will executed by her May 5, 1919, which was probated February 2, 1920, as appeared from a judgment of the county court of Cooke county of that date. By her said will Tisha Crow bequeathed all her “wearing apparel and personal belongings, absolutely and unconditionally, to be shared equally by them,” to her friends Bessie Belle Hill and Myrtle D. Moore, who are the appellants here, and also bequeathed to them the remainder of her property, “both real and personal where-ever situated, to be shared equally by them,” but subject to the right of appellee “to have the possession and use of said property during his natural life.” The suit resulting in the judgment from which this appeal was prosecuted was commenced by appellee in said county court September 22, 1920. It was to set aside the judgment probating said will on the ground that Tisha Crow at the time she made it (1) was mentally incapable of making a will, and (2) was wrongfully influenced by appellants to make it. On special issues submitted to them, the jury found (1) that Tisha .Crow did not “have sufficient mental capacity to make the will,” and (2) that she was induced to'make it by “undue influence exercised by appellants.” On those findings the court rendered judgment declaring the will to be void, setting aside the order of said county court probating it, and awarding the property belonging to Tisha Crow when she died to appellee. Thereupon appellants prosecuted this appeal.
    Geo. T. Burgess, of Dallas, and Culp, Culp, & Culp, of Gainesville, for - appellants.
    J. T. Adams, of Gainesville, for appellee.
   WILDSON, C. J.

(after stating the facts as above). Careful consideration of the testimony has convinced us it did not warrant either the finding that Tisha Crow lacked testamentary capacity at the time she executed the will, or the finding that she was wrongfully influenced to execute it. She and appellee Richard Crow, her husband, were negroes. Tisha was about 60 years of age. It was agreed at the trial that she had no relative living other than her husband. It appeared without dispute in the testimony that appellants were daughters of a deceased friend for whom Tisha had great affection, that she had known appellants all their lives, that they “seemed like kinfolk to her,” and that she was kindly disposed toward them, not only on their mother’s account, but also on their own account. It is inferable from the testimony that the only property owned by Tisha at the time she made the will and afterward was the “wearing apparel and personal belongings” she bequeathed to appellants and a house and lot in Gainesville used by. her and appellee as a homestead. It was established without dispute in the testimony that Tisha suffered from dropsy for a year or longer before she executed the will in question, and there was testimony that she passed much of the time during several months preceding and following the time when she executed the will, until she died, in a stupor from which she was aroused with more or less difficulty, according to the impression of the witness testifying, and that her memory was so impaired she would, sometimes not remember things she had done or said a short while after she did or said them.

But it also appeared from the testimony, and practically without dispute, that when she was not in a stupor Tisha acted and talked intelligently; and all the testimony as to her mental condition at the time she executed the will indicated that she was not then without testamentary capacity. The witness Davis, who wrote the will, testified that, in response to a request he received by telephone, he went to Dr. Wilson’s home in Greenville, where he found Tisha, who told him “she wanted to make a will and how she wanted it made.”

“She told me,” the witness said, “she had a husband, but she did not have any near relatives. She s.poke kindly of her husband, did not want to interfere with him; but at his death she wanted everything to go to those named in the will, those friends, and I explained to her that so far as the homestead was concerned that he had a life estate as long as he lived. She seemed satisfied and did not want to interfere with him as long as he lived, with the exception of the wearing apparel; of course, he had no use for that. So far as I could tell, she was all right, knew what she was doing. I never saw her before that. * * * I say her mental condition was all right, but I do not know about her physical condition. All I know was she was up, and the only impression made on nay mind was the impression made at that time. The only property she mentioned was this house and lot in Bast Gainesville.”

Dr. Wilson, a physician, was one of the subscribing witnesses to the will. He testified that so far as he could tell Tisha’s mental condition was normal at the time she executed it.

“She seemed,” he said, “to be in a natural condition, and she appeared to- be able to know what she desired to do, I think. I spoke to her some, and her conversation was natural, rational, about it. I do not remember , who requested me to sign the will as a witness. ■ There was quite a little bunch there, and I do not remember who asked me to sign. My wife, I think, was present, and Mr. W. O. Davis and Tisha and Myrtle Moore and Bessie Hill. Bessie Hill was working for me and lived there at my place. * * * I think Bessie Hill asked my wife’s permission to come in there and fix this up — asked permission to bring this old woman from the servant’s house and fix up the will. I would not say whether or not Mrs. Wilson phoned for Mr. Davis, but X do not think she did. X do not know how long Mr. Davis, was gone before he returned with the will — an hour, I would say, but I am just guessing at it, I think he came back the second time before dinner, but I am not sure about that.”

Appellants, the only other persons (except Dr. Wilson’s wife, who did riot testify at the trial) present when the will was executed, both testified that Tisha’s mind was sound. “Her conversation,” Myrtle said, “was connected and intelligent.”

The issue as to testamentary capacity having reference as it did to the time when Tisha executed the will, and not to any time before or after she executed it,-and all the testimony with reference to her mental condition at that time indigating, as we have seen, that she possessed such capacity, the finding of the jury to the contrary was plainly unwarranted.

The testimony appellee relied upon to sustain his contention that appellants wrongfully influenced Tisha to execute the will showed only that they were with her when she executed it and for several hours, perhaps, before she executed it, and hence had'an opportunity to influence her. The view appel-lee seems to take of the matter is that, an opportunity to do so being shown to exist, the jury had a right to infer from testimony that she was 60 years of age and afflicted with a disease which impaired her mind and body, that Tisha could be influenced by appellants to jnake a disposition she did not wish .to make of her property, and a right to infer from the provisions of the will that she was wrongfully influenced by appellants to do so. It seems to us that such inferences would be unwarranted, because speculative. There is nothing whatever in the record which suggests, even faintly, that the disposition Tisha made of her property by the will in question was not the disposition she at the time and ever afterward wished to make of it. Appellee argues that the will was an unnatural one, but it was not, as we view it. On the contrary, we think it was a natural and reasonable one. Having no relatives, and having provided for the use by her husband of the property she owned during his life, it was not unnatural that Tisha should wish the property to go after his death to her friends, the daughters of the deceased friend whom, a witness testified, she regarded as a sister.

The judgment is reversed, and the cause is remanded for a new trial. 
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