S. N. Morrison v. G. S. W. Thoman et al., 99 Tex. 248

BROWN, Associate Justice. This case comes to us on the following certificate: “It is ordered by the court that the motion of appellees to certify to the Supreme Court for decision the questions of dissent, as shown in the opinion heretofore filed in this cause, be granted, to wit: (1) whether or not the court erred in giving the charge quoted in said opinion on the issue of undue influence; (2) whether or not the court erred in giving the charge quoted in said opinion on the issue of fraud.

That is to say, whether or not the evidence raised these issues, and if it did raise the issue of undue influence, whether or not the charge referred to submitting that issue was correct.” The charges submitted and a statement of the case are embodied in the opinion of the majority of the court, which we copy: “This appeal is from a judgment of the district court of Jones County, on appeal from the county court, annulling an order of the county court probating the will of Mrs. Mary C. Morrison, who died in said county on the 22d day of March, 1899. The will was executed by Mary C.

Morrison with all the formalities of law, on February 19, 1896, and was duly probated in October, 1899. The will, omitting formal parts, is as follows: “ ‘1st. All the property that I have of every nature whatsoever, is the community property of my husband, S. N. Morrison and myself. “ ‘2d. I give and bequeath to my beloved husband, S. N. Morrison, all the property that I may die possessed of, real, personal and mixed, and of every nature whatsoever. “ ‘3d. I nomináte and appoint my husband sole executor of this will, and direct that no security shall be required of him as executor. “ ‘4th.

It is my will that no other action be had in the courts in the administration of my estate, than to prove and record this will and to return an inventory and appraisement of my estate and list of claims. “‘5th. Husband and I have talked over the disposition that we would like to make of what the survivor of us has left after he or she dies, and having implicit confidence in my husband I leave it to him to make such disposition.

I am aware of the fact that conditions might change, making it injudicious to carry out my present wishes as to the final disposition of the property my husband might inherit from me and have left when he dies, and for this reason I have given all my property to my husband absolutely, leaving it wholly to his discretion to dispose of it as he wishes.’ ” “The testatrix and appellant were married in 1873, and their community estate, neither having any other, amounted to something more than $5,000 at the time of Mary C. Morrison’s 'death, and this has since been materially increased.

" There was no issue of the marriage with appellant, but at the time of her death she left surviving her as the issue of a former marriage, the appellee, Mrs. Thoman, a son, C. S. Walker, and two minor grandchildren,, Dolly and Maurice Carter, the issue of a deceased daughter. The appellee, Mrs. Thoman, is a feme sole, and her action was instituted against the surviving husband, S. iST. Morrison, C. S. Walker, and said Dolly and Maurice Carter.

The will and its probating order are contested upon the grounds that the execution of the will was secured by undue influence exercised by appellant, and also on the ground of fraud, in that without purpose of fulfillment appellant promised Mary C.

Morrison that he would provide for appellee and said testatrix’s said other heirs during his lifetime, and at his death would leave to be divided among them the greater part, not only of her estate so to be devised to him, but his own estate as well, in the proportion she had expressed wish to give them. “The court thus submitted the issues: “ ‘If you find and believe from the evidence that, prior to the time of the execution of the paper writing, which has been probated as the last will and testament of Mrs. Mary C. Morrison, deceased, and which is involved in this suit, the said Mary C.

Morrison desired to make a different disposition of her property from what is made in said paper writing, dated the 19th day of February, 1896, and herein in controversy, and that the said defendant, S. 1ST. Morrison, desired that the said Mary C. Morrison should devise the whole of her property to him absolutely as her sole legatee, and in order to effect said desire the said defendant, S. 1ST. Morrison, promised and agreed with the said Mrs.

Mary Morrison that, if she would devise her said estate to him absolutely as her sole legatee, to the exclusion of her children and grandchildren, he would, at his death, devise not only her estate but also his own estate, in part, to her children and grandchildren and to his nephew, Sam Morrison; and that such promise and agreement so made, if you find they were made, actually influenced the said Mary C. Morrison to execute the paper writing, which has been so probated as her last will and testament, and exerted such influence as was too powerful for the mind, of the said Mrs. Mary C.

Morrison to resist; and that the said promise and agreement so made, if they were made, constituted undue influence, as hereinbefore defined, then you will find for the plaintiff that the execution of said paper was procured by undue influence and is not the last will and testament of Mrs. Mary C. Morrison, deceased. “ ‘If you find and believe from a preponderance of the evidence that, prior to the time of the execution of the paper writing herein in controversy, which has been probated as the last will and testament of Mrs. Mary C. Morrison, the said Mrs. Mary C.

Morrison, now deceased, desired to make a different testamentary disposition of her property from what is made in said paper writing, and that the defendant, S. 1ST. Morrison, desired her to devise same to him absolutely, and in order to do so, the said defendant, S. ET. Morrison, promised the said Mrs. Mary C. Morrison, now deceased, and agreed with her, that if she would devise the whole of said property to him absolutely as her sole legatee, he would at his death devise said property, or a part thereof, to her children, Mrs. Georgia Thoman and Charley S.

Walker, and her grandchildren, Dolly Carter and Maurice Carter; and that the said defendant S. 1ST. Morrison, fraudulently made the said promise with the intention and purpose not to keep it, and with the intention and purpose of influencing the action of the said Mrs. Mary C. Morrison, and that the said Mrs. Mary C.

Morrison relied on the said promise so made, if it was made, and that the same did actually influence her to execute the paper writing herein in controversy, and that, without said promise, if it was made, she would not have executed said paper writing, then you will find that the said paper writing was procured by fraud, and is not the last will and testament of the said Mrs. Mary C.

Morrison/ ” After discussing the facts the majority of the court expressed the following conclusion: “In short, we find nothing in all the evidence that in our judgment even tends to show that the execution of the will in question was procured by either undue influence or fraud on appellant’s part, and such being our conviction, it follows that the judgment should be reversed and here rendered for appellant. “Justice Speer does not concur in the above conclusions, but thinks the circumstances in evidence, when considered together, are sufficient to require the submission of the issues of undue influence and fraud, and that the charge given was correct.” The undisputed evidence establishes these facts: The testatrix was a widow, Mrs.

Mary C. Walker, residing in the State of Arkansas, with three children, Georgia (Mrs. Thoman), Charles and Lillie, the mother of Dolly and Maurice Carter, and she was married in 1873 to S. EL Morrison, the appellant in this case. At the time of the marriage Georgia was away from home at school and has never lived in the family since, except one 3rear, when she was about sixteen years old, after which she left her mother’s home and married while away.

In 1885, Morrison and his wife, with the daughter, Lillie, removed to Jones County, Texas; Charles, the son, being then twenty-one years old, chose to remain in the State of Arkansas, but in the course of a few years he joined his mother in Jones County, and has lived with and near them since that time. Mrs. Thoman visited her mother once in Texas. Morrison and his wife accumulated real and personal property which, at the death of' Mrs. Morrison, was worth the sum of $50,000. The property was regarded and treated by the parties as belonging to the community.

The daughter, Lillie, married Webb Carter, and, after the birth of two children, died, the children being taken by their grandmother where they remained up to the death of Mrs. Morrison, and since that time they have been under the care of Mr. Morrison. Mrs. Morrison was a very industrious and intelligent woman, not very strong, but she was able to perform the labors of housewife upon the farm until about the year 1896, when her health became impaired and she and her husband visited a physician in Taylor County for advice as to her condition.

The physician advised her to go to Chicago to receive treatment, and perhaps to undergo an operation. . Mr. and Mrs. Morrison then consulted together as to the propriety of making their wills and as to the character of the wills. It was first agreed that each should devise his or her. property to the other for life, with full power to sell it, and that each will should devise the property which might remain upon the death of the survivor, to Mrs. Morrison’s two children, Georgia and Charles, to the grandchildren Dolly and Maurice, with limitations as stated below, and to Sam Morrison, Jr., a nephew of Mr.

Morrison, absolutely. Some minor bequests were named which were to be given absolutely. For the purpose of having the wills prepared they visited Mr. Henry Sayles, Sr., of Abilene, Texas, a practicing lawyer there, and, upon going into his office, Mr. Morrison introduced his wife, stated the object of their visit, that his will was to be the same as his.wife’s and then retired. Mrs. • Morrison in a clear and intelligent manner stated to Mr. Sayles what disposition they desired to be made of the property and the limitations that should be placed on the estates of her children.

She stated that she wished to so arrange the wills that the property which would go to Mrs. Thoman and her son Charles, should be entailed so that it would never pass out of the family. Mr. Sayles informed her that such a will would be contrary to the laws of Texas; she was very much disappointed, and after a consultation between herself and husband, Mr. Sayles was instructed to draw a will for each which would come as near doing what Mrs. Morrison desired as the law would permit. He drew the wills in the form that he thought would as far as possible comply with the wishes of Mrs.

Morrison and at the same time be within the provisions of the law, and those two drafts were submitted to the examination of Mr. and Mrs. Morrison. Upon examination Mrs. Morrison did not approve of the wills, and after some little time, they returned to Abilene and told Mr. Sayles that the wills that had been prepared for each of them did not suit Mrs. Morrison, and that they had concluded for each to make a will giving the property to the other absolutely. In the absence of her husband, Mr. Sayles advised Mrs. Morrison that the will she' suggested would place it in the power of Mr.

Morrison to devise the property to any person that he might choose, to which she replied that she had all confidence in Mr. Morrison’s doing right and making a proper disposition of the property in the end. The wills were prepared for each, Mr. Morrison and his wife, in every essential particular alike and both were executed on that day. There had been no change in the purpose of Mrs.

Morrison and Morrison as to the final disposition of the property, and it was understood between them at the time that the survivor of them would so dispose of the property that at his or her death it would go to the persons named, that is, to Mrs. Morrison’s children, grandchildren, and Sam Morrison, Jr., but it was to be left to the discretion of such survivor as to the proportion of the property and character of estate to be given to each. If Mrs.

Morrison had not believed at the time she executed the will that her husband would give the property at his death to her children and Sam Morrison, Jr., she would not have executed the will, and Morrison knew at the time that she would not have executed it but for that understanding, and he did not in any way object to the arrangement or suggest that it might not be carried out. When the wills were signed each party understood the words “to make such disposition,” to refer to the giving of the property to the children and grandchildren of Mrs. Morrison, and to Sam Morrison, Jr. At the time that Mrs.

Morrison executed the will in question, she was suffering from a disease of a very serious character, and had in view a trip to Chicago for the purpose of undergoing an operation. She went to Chicago, the operation was performed and her health was very much improved for several years. In March, 1899, she died, without having revoked or in any manner changed her will. Appellant and his wife lived happily together and she had entire confidence in him.

There is evidence in the record which would support a finding by the jury of the following facts: There was a tacit agreement between Morrison and his wife, that the survivor of them should use the property belonging to the estate during his or her lifetime with the power to sell and dispose of it, and that at his or her death the survivor would devise the property to the children and grandchildren of Mrs. Morrison’s and to Sam Morrison, Jr. The portions given to Mrs. Morrison’s children, Mrs.

Thoman and Charles Walker, were to be given for life with limitations to their heirs after their death, and might be so limited or not to the grandchildren, as their circumstances and conditions might suggest as best; Sam Morrison’s part was to be given absolutely. The purposes of giving the property absolutely, by the terms of the will, were to enable the survivor better to manage the estate for the benefit of all and make such dispositions among the legatees agreed upon as justice and right might dictate, considering the conditions of their families, health, etc.

During her lifetime and after the will was made, Mrs. Mor.rison frequently spoke to others of having made her will, saying that she had provided for her children. The next morning after Mrs. Morrison was buried, the appellant called Charles Walker to him and asked him, in substance, if he knew everything there was his, Morrison’s, to which Charles replied, in substance, that he had not thought about it; and then Morrison said she left a will leaving everything here to me and I have a right to leave it at my death to whoever I please.

Morrison did not tell Charles at the time anything about the understanding between himself and his deceased wife, as to the giving of the property to her children and grandchildren at Morrison’s death. Some months after Mrs. Morrison died, appellant talked to Mrs. Winters, the mother of Charles Walker’s wife, about the will of Mrs. Morrison, but did not state anything about the understanding between himself and his wife as to how the property should be disposed of at his death. Mrs.

Thoman’s husband died some months after her mother’s death, and she began to inquire about her mother’s property by letters written to Charles, her brother, to his wife, and also to Mr. Morrison. After this correspondence began Morrison told Charles that his sister, Mrs. Thoman, thought she was very smart, but that she would not get any of the property, and also told Mrs. Winters that she and her husband had better look after Minnie, Charles Walker’s wife, because he and Charles could not get along well together, and he might turn him off any day. Morrison did not answer the letters of Mrs.

Thoman and did not give her any information as to the agreement between himself and his deceased wife with reference to the disposition of the property, but finally wrote to her the following letter: “Abilene, Texas, Sept. 20, 1900. Dear Georgia: Your.letters of recent date have'been duly received and contents have been duly considered. From the line of your several letters I could not see that a letter from me would avail anything. You are aware that I do not recognize that you have any rights or interest in your mother’s estate.

You know that prior to your mother’s death she made a will disposing of all her property and I have been informed that you have a correct copy of the will; if you have not I will furnish you with one at any time; according to the laws of Texas the property goes according to the will. I would regret very much for the wisdom and justice of my wife’s will to be questioned in the courts of our country.

Yet I shall not do anjdhing to prevent a full investigation, though I fear this would force me to bring before the courts our many, many troubles, and my great expenditures of money which runs well up into the thousands; but if you are not satisfied with your own mother’s will, the courts of Texas are open to you, and I have nothing to cover up. I remain, well wisher and best friend, S. Y. Morrison.” We answer the questions submitted as follows: First.

The trial court erred in submitting to the jury the issue of “undue influence,” because there was not sufficient evidence to justify the submission of the question. Second. The trial court did not err in submitting the issue of fraud to the jury. There were before the jury facts and circumstances from which they could find that Morrison induced his wife to make the will in issue by a tacit agreement upon which she relied, but he did not at the time intend to keep and perform that agreement.

We do not think it proper to enter into a discussion of the weight of the testimony in this case, but we have, upon a careful examination of the record, made a statement of the facts which we believe are supported by evidence, and, as a matter of law, called for the submission to the jury of the issues of fraud on the part of Morrison. Our conclusion that the jury might find fraud on the part of Morrison is based alone upon the facts and circumstances which tend to establish the fraud, disregarding all facts and circumstances which explain his conduct or contradict the evidence upon which the fraud is predicated.

It is true, as suggested by counsel for appellant, that such facts as are alleged and proven in this case concerning the transaction between Morrison and his wife, might create a trust in Morrison in favor of the children of Mrs. Morrison, her grandchildren and Sam. Morrison, Jr.; but granting that such a trust would arise upon the facts of the case, and that the circumstances might have enforced the trust instead of annulling the will, that does not deprive them of the right to choose the remedy which is most conducive to their interest.

If Morrison procured the instrument by fraud, then it would be binding upon him in favor of the beneficiaries if they wish to enforce it; but that does not confer upon him the right to choose for them their remedy. The contestants had the right, if they could establish the fraud, to set aside the will and take the benefit of the provisions of the law as to the descent of the property.