Opinion
No. 3677.
April 18, 1929. Rehearing Denied April 25, 1929.
Appeal from District Court, Rockwall County; Joel R. Bond, Judge.
Proceedings by Mrs. Dollie Bailey and others, opposed by Maud M. Morris and husband, for the probate of the last will and testament of M. S. Bailey, deceased. From a judgment affirming the judgment of the county court admitting the will to probate, contestants appeal. Affirmed.
M. S. Bailey died September 27, 1927, leaving a will executed July 21, 1924, containing provisions as follows:
"I give and bequeath all the property which I may own at my death, whether same be real, personal or mixed, to my aunt Mrs. Dollie Bailey of Rockwall, Texas, same to be used and enjoyed by her until her death and at her death to go to my nieces Joe Bailey and Kiddie John Bailey, children of my deceased brother, J. T. Bailey. It is intended to give all of my property to my said aunt, Mrs. Dollie Bailey, to use and enjoy during her life, with power to sell and convey any or all of same, real or personal, and to make absolute title thereto and to use the proceeds of same without any accounting and if any of said property remains at her death, then the same is to go to my said two nieces."
By a petition filed in the county court of Rockwall county October 8, 1927, Mrs. Dollie Bailey, named therein as independent executrix, sought to have the will probated. Appellant Maud M. Morris, sister of the testator, joined by her husband, appellant O. M. Morris, objected to the probate of the will on the ground (1) that the testator was mentally incapable of making a will, and (2) that he was unduly influenced to make the one offered for probate. The hearing in the county court resulted in a judgment admitting the will to probate, whereupon appellants prosecuted an appeal to the district court of Rockwall county. At the trial in the last-mentioned court the jury were instructed to return a verdict in Mrs. Dollie Bailey's favor, and, they having done so, judgment was rendered determining, as did the judgment of the county court, that the will was entitled to probate and Mrs Dollie Bailey to letters testamentary when she qualified as independent executrix.
A. H. Mount, of Dallas, and T. B. Ridgell, of Breckenridge, for appellants.
E. D. Foree, of Rockwall, and Thos. R. Bond, of Terrell, for appellees.
It is not contended here that there was any evidence at the trial in the court below tending in the least to support the charge that the testator lacked mental capacity to make a will. The contention is that there was evidence which would have supported a finding that he was unduly influenced by appellee Mrs. Dollie Bailey to make the will in question, and that the court below therefore erred when he peremptorily instructed the jury to return a verdict in said appellee's favor and, on a verdict as instructed, rendered judgment determining that the will was entitled to probate. Appellants in their brief have not pointed out, and we have not found on a careful reading of the statement of facts sent to this court, any evidence which, as we view it, supports the contention. The fact that the testator bequeathed his property to an aunt and two nieces, making no provision for his brothers and sisters and other nieces, we think alone was without probative force. And we think the testimony showing that the testator lived with said appellee Mrs. Dollie Bailey, and that she therefore had an opportunity to improperly influence him if she could and was willing, to do so, did not make an issue for the jury as to whether she did so influence him or not. Clark v. Briley (Tex.Civ.App.) 193 S.W. 419; Patterson v. Lamb (In re Burns' Estate) 21 Tex. Civ. App. 512, 52 S.W. 98. In the case last cited the court said:
"Undue influence cannot be presumed or inferred from opportunity or interest, but must be proved to have been exercised, and exercised in relation to the will itself, and not merely in other transactions."
The judgment is affirmed.