
    PAYNE v. CHANCE.
    (No. 2883.)
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 18, 1928.
    Rehearing Denied March 7, 1928.
    1. Wills <S=>324(2) — Question of testamentary capacity ordinarily is one of fact for jury.
    The question of testamentary capacity or- ' dinarily is one of fact for the jury.
    2. Wills <0=350 — Testator has capacity if he knows nature of transaction in which he is engaged, extent of property, and persons who are objects' of his bounty.
    A testator has the capacity to make a will if he knows the nature of the business or transaction in which he is engaged, the extent of his property, and the persons who are the objects of his bounty.
    3. Wilis <§=»21— Ordinarily, less capacity is required to enable one to make will than to enter into contract or engage in complex business transactions.
    Ordinarily, less capacity is required to enable a testator to make a valid will than for the same person to enter into' a contract or engage 'in intricate and complex business transactions.
    4. Wills <0=321 — Testator’s mental capacity must be determined as of date of will.
    ■ The testator’s mental capacity must be determined as of date of the will.
    5. Wilis <0=3288(1) — Tendency of courts is to uphold wills.
    The tendency of courts is to uphold wills.
    6. Wilis <0=s52(I)— Burden is on proponent to show by positive evidence that testator was possessed of mental capacity sufficient to make valid will at time will was executed.
    The burden is on the proponent of a will to show by positive evidence at the time he seeks to have the will probated that the testator was possessed of mental capacity, at time will was executed, sufficient to make valid will.
    7. Wills <0=352(1) — Proof of habitual intoxication raises no presumption that incapacitating drunkenness existed at time will was executed.
    Proof of habitual intoxication raises no presumption that incapacitating drunkenness existed at the time will was executed.
    8. Wills <0=343, 44 — That testator is addicted to drugs or to drinking cannot, in itself, be held to incapacitate him from making will.
    So long as there has not been a destruction of that mentality which the law requires for the making of a will, it cannot be said that the fact that testator is addicted to the habit of drinking or of using drugs incapacitates him from making a will.
    9. Wilis <03=44 — 'That testator was under influence of liquor when he made will does not invalidate will, unless he had no intelligent comprehension of what he was doing.
    That at the time testator made his will he was under the influence of liquor does not invalidate will, unless testator had no intelligent comprehension of what he was doing.
    10. Evidence <0=3527 — Wills <0=344 — 7Effeet of intoxication on testator’s capacity depends on common observation and facts of particular case and is not question for experts.
    The effect of the intoxication of testator on his capacity at the time of making his will is not a question for experts, but depends on common observation and the facts of the particular --ease.
    11. Wiils <0=>54(3) — In will contest, testimony showing testator’s statements as to persons to whom he would give or devise property held admissible for sole purpose of showing mental capacity, though contradictory of will.
    In will contest, testimony contradicting provisions of 'will, relative to testator's statements before and after execution of will in question, as to who'm he expected to give his property and to whom it had been devised, held admissible only for purpose of showing mental capacity.
    12. Wills @=>55(6) — Evidence held not to support jury’s finding of testator’s lack of mental capacity to make will.
    In will contest' proceedings, evidence held not sufficient to support jury’s finding that testator did not have mental capacity to make will.
    Appeal from District Court, Crosby County ; Homer L. Pharr, Judge.
    Application by J. H. Payne for the probate of the will of Dan Plogan, deceased. From an order of the County Court admitting the will to probate, the contestant, D. W. Chance, appealed to the District Court, which rendered judgment for contestant, and proponent appeals.
    Reversed and remanded.
    Bean & Klett, of Lubbock, for appellant.
    L. A. Wicks, of Ralls, for appellee.
   HALL, O. J.

On September 30, 1922, Dan Hogan executed a will, in which he gave his property, in certain proportions, to the children of L. W. Chance, Miss Bessie Elliott, and an aunt of the testator, Miss Nora Mor. an. Thereafter on November 9,1923, he made another will in which he gave his property to the children of appellant, J. H. Payne, Miss Margaret Elliott, and Miss Nora Moran. Testator died April 20, 1924.

On the 23d of April, 1924, the appellant filed his application to have the last-mentioned will probated. On November 18,1925, the appellee filed an answer contesting the probate of said will on two grounds, namely: (1) Lack of testamentary capacity; and (2) undue influence. On the same day, the county court admitted the will to probate. Erom this order, Chance appealed, to the district court, and on March 14, 1927, the case was tried in that court to a jury.

T.wo issues were submitted to the jury. The first, with the finding, is, in effect, that at the time Dan Hogan signed the last will, dated November 9, 1923, be did not bave testamentary capacity. Tbe second issue, which related to tbe question of undue influence, was not answered. Based upon tbe verdict, tbe court' denied appellant’s prayer for tbe probate of tbe will. Prom a judgment entered in accordance with tbe verdict, this appeal is prosecuted.

Tbe sole issue before us is that of tbe testamentary capacity of Dan Hogan at tbe time be executed tbe last' will. There is no issue of insanity of any character, senility, or undue influence in tbe case. It is insisted by appellant: (1) That there is no evidence to support tbe jury’s finding; (2) that tbe great preponderance and overwhelming weight of tbe evidence is that tbe testator had sufficient mental capacity to make a valid will at tbe time be executed it on November 9, 1923, and that tbe undisputed evidence in behalf of tbe proponent showed that testator was more than 21 years of age, was of sound mind, and executed tbe will with all tbe formalities and solemnities required by law. These contentions require us to review tbe statement of facts and tbe evidence relevant .to tbe issue to be decided. In determining tbe issue presented by this appeal, there are certain fundamental principles of law and procedure which govern in such cases and which may be stated as follows:

Tbe question of testamentary capacity is ordinarily one of fact for the jury. Bienhardt v. Nehring (Tex. Civ. App.) 283 S. W. 347; 1 Alexander on Wills, p. 548, § 403.

It is held that a testator is capacitated if be knows the nature of the business or 'transaction in which be is engaged, tbe extent of bis property, and the persons who are the objects of his bounty. Vance v. Upson, 66 Tex. 476, 1 S. W. 179; In re Bartels’ Estate (Tex. Civ. App.) 164 S. W. 859; Prather v. McClelland, 76 Tex. 574, 13 S. W. 543; Morris v. Morris (Tex. Com. App.) 279 S. W. 806.

Ordinarily less capacity is requisite to enable a testator to make a valid will than for tbe same person to enter into a contract or engage in intricate and complex business matters and transactions. Vance v. Upson, supra; 1 Alexander on Wills, p. 444. Tbe testator’s mental capacity must be determined as of the date of the will. Vance v. Upson, supra; Warren v. Ellis (Tex. Civ. App.) 137 g. W. 1182; 1 Alexander on Wills, p. 435.

While tbe tendency of tbe courts is to uphold wills (1 gchouler on Wills [6th Ed.] § 200), tbe rule in Texas is that tbe burden is on tbe proponent to show by positive evidence, at the time be seeks to bave tbe will probated, that tbe testator was possessed of mental capacity at the time tbe will was executed, sufficient to make a valid will.

Upon tbe issue involved, about 25 witnesses testified pro and con. It was shown that tbe testator was an old bachelor about 55 years of age, a native of Ireland, and bad lived at Balls and in that vicinity for about 20 years. He was a painter by trade, bad been a cowboy in earlier days, and at about tbe time of bis death owned a wagon yard and bad been running a small restaurant. When be first came to Balls, it appears that be was taken into tbe home of L. W. Chance, tbe contestant, where he was treated practically as a member of tbe family. During this period, he executed tbe first will. Later be moved into a small house in bis wagon yard and lived there until bis death. It is conceded that he was an habitual drunkard, and at times would become so intoxicated that he was not mentally or physically able to attend to his business. Tbe contestant insists that at tbe time tbe last will was executed, be was intoxicated and that be bad been so weakened menially by heavy drinking prior to that date that be was not capable of making a valid will.

Proof of habitual intoxication raises no presumption that incapacitating drunkenness existed at tbe time tbe will was executed. 1 gchouler on Wills (6th Ed.) § 214.

As said in 1 Alexander on Wills, § 475:

“A person may drink and yet retain his mental faculties, although some may claim they are blurred fo an extent, yet the use of intoxicants does not necessarily mean a complete loss of understanding. The same may be said regarding drugs, yet without question, a person, through a superabundance of alcoholic drinks or the excessive use of drugs, may become so mentally obscured that he is, for the time being, comparable to a mad man. In such a condition, he cannot make a valid will, for understanding is lacking, but the effects of alcohol and of drugs wear off and although they may leave the user weakened, both in mind and in body, yet so long as there has not been a destruction of that mentality which the law requires for the making of a will, it cannot be said that the fact that the testator is addicted to the habit of drinking or of drugs incapacitates him from making a will, gucli fact alone does not raise a presumption that the necessary intelligence is lacking. The question to be determined is the mental capacity of the testator at the time he makes his will and the fact that he may be then under the influence of liquor does not invalidate his testament unless he had no intelligent comprehension of what he was doing, and the effect of the intoxication on his capacity is not a question for experts but depends upon common observation and the facts of the particular case.”

Upon the issue of Hogan’s mental capacity, as affected by bis habits of intoxication, four witnesses for tbe proponent and one for tbe contestant testified as to such condition on November 9th, when tbe last will was executed. Tbe statement of facts is voluminous, comprising over 100 pages, and we will merely give a summary of such testimony, from tbe various witnesses, bearing upon this issue.

It appears that on the morning of the 9th ■of November, the testator, with Payne, concluded to go to Crosbyton, but they were prevented from leaving Ralls until about noon. About that hour they left Ralls and went to Crosbyton, tbe county seat, 8 or 10 miles distant. Upon arrival at Crosbyton, tbe testator went immediately to tbe office of Mr. Green Harrison, tbe county attorney, wbo bad been his legal adviser for a number of years, and stated that be wanted Harrison to draft bis will. He gave Harrison a statement- of wbat disposition be desired to make of bis property as well as a statement of tbe property, including several town lots in Ralls. Tbe county attorney wrote tbe will and it was attested by tbe County Judge Jake Made, and the sheriff, John D. McDermett. These three witnesses testified that they bad known the testator for a number of years and that at that time be was in his usual frame of mind and was not intoxicated. Tbe fourth witness, Y. R. Plummer, an abstractor, bad an office in the courthouse, and while tbe testator was in the courthouse, be called on Plummer and they bad a settlement of some business transactions. It seems that testator bad been doing some painting for Plummer and Plummer bad been doing the testator’s abstract work, and in a settlement Plummer gave Hogan a check for a balance due the latter. Plummer testified that Hogan handled the transaction in a business-like way, and that be observed nothing out of the ordinary in Hogan’s mental condition. Harrison testified that be thought Hogan’s mind was sound; that be did not smell whisky and did not think Hogan was drunk at the time tbe will was signed. He stated affirmatively that in bis opinion Hogan was sober.

Sheriff McDermett testified that be bad known Hogan for years and years, bis acquaintance beginning in a cow camp when Crosby county was only a cattle ranch. He testified that from tbe conversation be bad with him that be thought Hogan’s mind at the time be executed tbe will was all right.

Judge Made was not so positive in bis testimony because be explained that be merely attested tbe will at Hogan’s request and did not observe him critically. 1-Ie had known Hogan for only two or three years, but he stated that there was nothing about Hogan’s conversation or manner as attracted his attention specially or caused him to think or believe that there was anything out of tbe ordinary or unusual in Hogan’s condition; that bis conduct was as a business man while there.

Plummer stated that his business relations commenced with Hogan in 1917 or 1918; that based on his transactions with Hogan on tbe day tbe will was signed, judging from bis conduct and appearance, physical as 'well as mental, in bis opinion Hogan was sober.

Several witnesses testified that after knowing Hogan intimately for years, in their opinion, when Hogan was sober, be was at himself mentally as much as any other man. Tbe consensus of tbe,opinion of practically all of tbe witnesses for both sides was that be bad good business judgment and clear ideas, especially concerning bis own affairs, when be was not intoxicated.

Several witnesses for tbe contestant admitted that when Hogan was on a spree be would not attempt to transact any business. The effect of their testimony is to show that be realized while be was under tbe influence of liquor that be was incapable of attending to bis business affairs, even in tbe issuing of checks, and would refer parties wbo called' upon him to transact business matters to L. W. Chance.

Plis banker testified that be told him at one time during a protracted spree not to pay any checks of bis which bad not been O. K.’d by L. W. Chance. It would seem that tbe effect of this testimony is to rebut tbe contestant’s position that Hogan would undertake to dictate and execute a will while intoxicated.

Will Ezell is tbe principal witness introduced by contestant to sustain tbe contention that Plogan was intoxicated on tbe day tbe last will was executed. It seems reasonably clear that Ezell was mistaken as to the date. The testimony is uncontradicted that tbe will , was executed early in tbe afternoon of November 9th. According to Ezell’s testimony, in which be details an all-day orgy with Iio-ggn, be says be was drunk with Hogan in Crosbyton on November 9th. He says be met Hogan about 8 o’clock in tbe morning. He did not express an opinion as to Hogan’s mental capacity, but described bis condition as “shaking,” “nerves all torn up,” and in “pretty bad shape.” Ezell admitted that be was a “jake” and “extract” drinker himself; that be bad been drinking “that stuff about as strong as anybody for a number of years”; and that at times be was “almost crazy.” His testimony shows that together with Hogan and a third party by tbe name of Andy Wooten, wbo was not introduced as a witness, they purchased between 10 and 15 bottles of vanilla extract and Jamaica ginger, retired behind a signboard, and drank it, most of which was consumed in tbe forenoon. Tbe reasonable inference from Ezell’s testimony is that this drunken spree was on a date other than November 9th.

Tbe only other witness, whose testimony in behalf of tbe contestant tends even remotely to show Hogan’s condition on tbe day in question, is the witness Williamson, wbo says that be was in tbe transfer business at Ralls and hauled some shoes from tbe depot to Hogan’s place of business either on tbe 8th ’ or 9th of November, 1923, and that Hogan •was drunk tbe day.be hauled tbe shoes. He further says that Hogan was drunk on both days. It is difficult to understand bow Hogan could be drunk in Ralls for two days and during one of sucb days get on a drunk with Ezell in Crosbyton.

One important witness for tbe contestant was Dr. Fullbright, who testified as an expert upon testator’s mental and physical condition; but there is considerable doubt, from his testimony, as to the period when he was Hogan’s medical adviser. It appears, according to his statement, that he visited Hogan while the latter was in jail in Crosbyton charged with drunkenness in March, 1923, and until about a week before testator died in April, 1924. He finally said:

“When he was in jail here, I saw him a few days before he was down here, and I think I saw him a few days professionally afterward.”

The doctor testified that Hogan had Bright’s disease, which had affected his heart and rendered him dropsical, resulting in a swelling of his lower limbs. He gave it as his professional opinion that Bright’s disease would, in certain cases, result in oedema of the brain, but he did not state that Hogan was in such condition. On recross-examination, he said:

“I wo-uld not want to leave the impression with the jury that a man, though crippled and diseased, in the limbs, that his mind is affected to such an extent that he would not know what to do with his property or how he wanted to give it away or how he wanted to dispose of it by will. I would not say a man of old age or a man who drank would not still have enough mind to know to whom he wanted to give his property.”

The testimony of the witnesses not herein specifically mentioned all tend to show that Hogan was a heavy drinker and was frequently intoxicated to such dn extent that he did not attempt to conduct his business affairs, which consisted in part of an army store and a small restaurant and café. It is conceded that when he was not in a drunken condition he was a man of more than ordinary intelligence and above the average in mentality. He read the daily papers and was well informed in public affairs. He was a member of the Knights of Columbus, a Catholic in religious belief, a Republican in principle but voted the Democratic ticket in Texas, and during the struggle between Ireland and England was a strong partisan of his native Isle. He was bitterly opposed to the Ku Klux Klan and freely and intelligently discussed all such issues with his friends. Aside from the opinion of Dr. Fullbright and possibly one or two other witnesses, there is nothing to indicate that his mind had become so enfeebled by his use of intoxicating liquors that he could not efficiently conduct his business affairs when not on one of his sprees, and the testimony, taken as a whole, does not indicate that when ordinarily sober he would be mentally incapacitated to dispose of his property by will.

Considerable testimony was introduced showing that he had stated, both before and after the execution of the last will, to whom he expected to give his property and to whom it had been devised. This, with other testimony of declarations, which, in effect, contradicted the provisions of the will, was admissible only for the purpose of showing his mental capacity and should have been limited by the court to that purpose.

Because we are convinced that the verdict of the jury, as to the testator’s- mental capacity, is contrary to the preponderance of the testimony, the judgment is reversed and the cause is remanded. 
      . <0=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     