Johnson's Estate v. Poindexter , 288 S.W. 575 ( 1926 )

Not being able to agree with the majority opinion filed in this case, I herewith file my dissenting opinion, giving my reasons for being unable to agree with the majority. A careful analysis of the testimony in this case relating to mental capacity of Mary Johnson will disclose that there is no evidence of any probative force offered on the trial of the case to show want of testamentary capacity at the time she executed the will in controversy, nevertheless the jury found that she did not have sufficient mental capacity to make the will in controversy. The opinion of the majority of the court does not discuss the question of the mental capacity of Mary Johnson, but rather indicates that if the question was necessary that they would hold she had mental capacity to make the will in controversy. Therefore it is not necessary in this dissenting opinion to discuss the evidence relating to the mental capacity of the testatrix further than to state that the evidence, as I view it, is wholly insufficient to predicate a finding of want of mental capacity, and this question should not have been submitted to the Jury.

The majority of the court bases the opinion upon the finding of the jury that there was undue influence exerted on the part of Will Johnson to have his mother make the will in controversy. In this conclusion of the majority I cannot agree, and believe that the testimony is wholly insufficient to have authorized the jury to have found undue influence on the part of Will Johnson. Mary Johnson died on the 12th day of May, 1925, over nine years after the execution of the will. The uncontroverted testimony shows that Tom Johnson, her husband, died intestate on the 1st of March, 1915, leaving surviving him his wife, Mary Johnson, and two married daughters and four sons. A few months after the death of Tom Johnson, his two married daughters demanded their share of their father's estate, and Mrs. Poindexter filed suit in the district court of Callahan county, Tex., for partition. Thereafter the property was divided, and the two daughters received their share of their father's estate; the division being made about December, 1915. Mary Johnson, whose will is involved in this litigation, was opposed to the partition and became angry at her two married daughters by reason thereof. This fact is conclusively shown by the record, and as to whether or not she at first consented to the partition is not material in a discussion of this case. She did become very angry at her two married daughters and executed her will in a very short time thereafter and in February following the partition in December. She appeared before her attorney, Judge Otis Bowyer, of Baird, Tex., about the 21st of February, 1916, and dictated to him the kind and character of will she desired made. Will Johnson was not present, nor any other person. There is no testimony in the record, as I view it, that shows that any person had ever so much as asked or importuned Mary Johnson to make a will, much less have a controlling influence over her mind in the procuring of the will. In order for undue influence to be sufficient to authorize a jury to declare a will void, the facts must show that the undue influence had a controlling effect on the acts of the testatrix. It is true that undue influence may be shown by circumstances, but the circumstances must be strong enough to justify a conclusion that the undue influence existed. The fact that Will Johnson lived with his mother and attended to her business, and the fact that he opposed the division of the property, is not sufficient to show that he exerted any undue influence on his mother to make the will. There must be some affirmative evidence somewhere showing that he exerted an undue influence over his mother before the jury would be authorized to make such a finding. The law is well settled that mere persuasion is not sufficient to establish undue influence, but the undue influence must have a controlling effect on the acts of the testatrix. Hart v. Hart (Tex.Civ.App.) 110 S.W. 91; Morrison v. Thoman, 99 Tex. 248, 89 S.W. 409; Patterson v. Lamb, 21 Tex. Civ. App. 512, 52 S.W. 98; Barry v. Graciette (Tex.Civ.App.) 71 S.W. 309.

Bearing in mind these authorities, I shall discuss the testimony of the witnesses. The first witness was Lillie Betcher, who testified that Mary Johnson was of unsound mind; but on cross-examination her testimony was sufficient to clearly show that Mary Johnson did have sufficient mind to make a will. She did testify that she had a conversation with Will Johnson after his mother died, which was in May, 1925, and that she tried to get the boys to divide with the girls and he said they were going to stand by the will. She testified to no act of Will Johnson prior to the execution of this will that would indicate undue influence.

Albert Betcher testified that Mrs. Johnson was of unsound mind, and he based it upon the fact that she made the kind of a will she did and on no other ground. He testified to no act of undue influence.

Maryette Poindexter testified to no material fact, unless it was her testimony to the effect that when Will Johnson came around there would be a difference in attitude of Mrs. Johnson and that she appeared less friendly. Her testimony is almost entirely confined to matters that occurred after the death of Mrs. Johnson.

J. W. Slough testified as to the mental capacity of Mrs. Johnson, but as to no facts relating to undue influence.

Mrs. Farmer testified as to the mental condition of Mrs. Johnson, that at the time of the division, back in 1915 when the matter first came up, Will Johnson wanted all his father's estate to be kept in the Johnson name. Her testimony, however, utterly fails to show mental incapacity, but rather to the contrary.

The contestants, Mrs. Poindexter and Mrs. Likens, testified, but they testified to no facts that would authorize a jury to find undue influence. The only testimony of Mrs. Poindexter and Mrs. Likens that would be material on the question of undue influence is the testimony of Mrs. Likens to the effect that Will Johnson stated, after the death of Mary Johnson, that he had nothing more to do with the will than he ought to have had, and her testimony to the effect that while they were discussing the division after the death of Tom Johnson, he stated he would see that they never got another damn cent. This testimony is wholly insufficient to show undue influence, unless it be coupled with some affirmative act on the part of Will Johnson to show that he actually did something to cause Mary Johnson to make the will, and that this was a controlling factor in her making the will. When it is considered that Mary Johnson went before her attorney without any one being with her and that she dictated the will and let it remain as it was for nine years, and until her death, the conclusion is inevitable that no such influence was exerted on her by any one that would void this will. The right to make a will and dispose of one's property as he desires should not be set aside on such flimsy testimony.

I also believe the court committed material error in permitting the contestants to offer in evidence the questionnaire of Will Johnson, as shown by bills of exception in this case. The questionnaire offered in evidence was the questionnaire filled out by Will Johnson at the time the United States was at war with Germany, and his questionaire shows that he claimed exemption on account of the fact that he was the manager of the Johnson farm in Callahan county, Tex. This questionnaire was made out some 18 months after the execution of the will, and appellants objected to such testimony on the ground that it was irrelevant, inflammatory, and did not tend to prove any issue in the case, and was not admissible as impeaching testimony for the reason that it was on an immaterial matter. The court admitted the testimony, but attempted to limit its effect to the question of impeaching the witness Will Johnson. In view of the fact that the testimony was of a very inflammatory nature and calculated to prejudice the jury and to be used by the contestants in argument to the jury, the court should not have admitted such testimony unless it was clearly admissible. I do not believe the qualification of the court could remove from the mind of the jury the fact that the witness had tried to evade military service, and the case should be reversed on this point. It was not material as to whether or not Will Johnson was manager of the ranch at the time the questionnaire was made, as the will had been executed for more than 18 months prior to that time. The questionnaire was not admissible for any purpose, not even for impeaching purposes.

I therefore am of the opinion that the evidence was insufficient to justify the verdict of the jury, and that the admission of the questionnaire was prejudicial, and that the case should be reversed and remanded.