# Leahy v. Timon > Court of Appeals of Texas · June 5, 1918 · 204 S.W. 1029 URL: https://www.frixlaw.com/law-library/cases/9826982 ## Case - **Full name:** LEAHY Et Al. v. TIMON Et Al. - **Court:** Court of Appeals of Texas - **Decided:** June 5, 1918 - **Citations:** 204 S.W. 1029; 1918 Tex. App. LEXIS 730 - **Precedential status:** Published - **Opinion:** Opinion of the court by Moursund - **Judges:** Moursund - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9826982 ## Opinion text MOURSUND, J. This suit is one by Cecelia Leahy, joined biy her husband, Phillip Leahy, and Laura Dolan, daughters of Mrs. Ellen Timo-n, deceased, and Mary Ellen Ellis, .joined by her husband, C. C. Ellis, Ann Ara-bella Blair, joined by her husband, Sam Blair, John Iíenry Timón, Amos Cecil Timón, Walter Lee Timón, Augusta Margaret Timón, Edward Beasley Timón, a minor, who sued by his mother, Agnes Timón, as next friend, who are the children of John W. Timón, the deceased son of Mrst Ellen Timón, against Walter F. Timón, E. C. Timón, H. J. Timón, and Lizzie J. Barry, children of said Mrs. Ellen Tinion, and Harry T. Dolan, a minor grandson of Mrs. Ellen Timón, to contest the validity of a paper purporting to be the will of said Mrs. Ellen Timón, dated January 17, 1912, and also its probate in the county court of Nueces county under a decree rendered February 4, 1915. The grounds alleged were that at the date of such instrument Mrs. Tlmon was without testamentary capacity, and that such instrument was the product' of fraud perpetrated on her by defendant Walter F. Timón, and of undue influence exercised over her by him. During the pen-dency of the suit, Edward Beasley Timón reached his majority, and thereafter prosecuted the suit in his own name. The suit was filed in the county court of Nueces county on March 16,1915. Claude Pollard was appointed guardian ad litem for the minor, Harry Timón Dolan. Judgment wasi rendered in the county court in favor of defendants, and, upon appeal to the district court, a general verdict was returned by the jury in favor of defendants, upon which judgment was entered, reaffirming the validity of the will and its probate, and adjudging the costs, including a fee of $1,000 for Claude Pollard, against the plaintiffs. Plaintiffs appealed. Under the instrument an estate of about a. half million dollars was devised, one-third to one-half thereof to Walter F. Timón, property worth about $20,000 to Harry T. Dolan, the minor s,on of plaintiff Laura Dolan, and to each of the other three defendants a substantial portion; no effort being made to provide uniformity in value as to any of the beneficiaries. The plaintiffs were entirely pretermitted. Walter F. Timón was appointed independent executor, trustee to hold and manage the property devised to Harry T. Dolan, and it was further provided that the bequests be divided and apportioned among the devisees by the executor in such manner and form as to him might seem proper. A vast amount of testimony was adduced, the statement of facts containing 900 pages. In. the charge of the court the issues of mental capacity, undue influence, and whether Mrs. Timón executed the instrument were specifically submitted, and reference made to the issue of fraud. At plaintiffs’ request the court gave special charges drawn by plaintiffs submitting each of the following issues: (1) Fraud; (2) mental capacity; (3) whether the instrument signed by Mrs. Timón had been altered after she signed it; (4) whether Mrs. Timón knew and understood the contents of the instrument at the time she signed it; (5) undue influence. By its general verdict for defendants the jury found in their favor as to each issue submitted. We conclude that the evidence is sufficient, as to each of such issuest to support the verdict of the jury. We conclude, further, that the testimony is not of such character, as to any material issue, as would justify this court in exercising the power, conferred upon it, to set aside a verdict on the ground that it is so contrary to the preponderance of the testimony as to show that manifest injustice has been done. The evidence is discussed at length and with much ability in both briefs, which also disclose an exhaustive investigation of authorities for the purpose of supporting the contentions made with respect to the weight to be given to certain facts. Were we to attempt to follow the discussion, this opinion would be indeed lengthy, and no- useful purpose would be subserved thereby. [1] Assignments 7 to 13, inclusive, and 16 and 17, complain of the refusal to permit *1031 Cecelia Leahy, one of the plaintiffs, to testify to certain statements made by Mrs. Timón to her. By the fifteenth assigmnent complaint is made because the court, on motion of defendants, struck from the evidence and instructed the jury not to consider testimony of Mrs. Leahy relating to a transaction between her and Mrs. Timón. While some portions of tire testimony to which the assignments relate might not be material, there is sufficient thereof material to require a reversal of the judgment, if testimony of this character is admissible in cases of this kind. We conclude, however, that, under the decisions of our Supreme Court, the testimony of Mrs. Leahy, a party to the suit, concerning statements by or transactions with Mrs. Ellen Timón, was not admissible over the objection that it was inhibited by article 3600, R. S. 1911. Brown v. Mitchell, 75 Tex. 9 , 12 S. W. 606 ; Sanders v. Kirbie, 94 Tex. 564 , 63 S. W. 627 ; Lewis v. Aylott, 45 Tex. 190 ; McCampbell v. Henderson, 50 Tex. 602 ; Parks v. Caudle, 58 Tex. 216 ; Reddin v. Smith, 65 Tex. 26 ; Ross v. Kell, 159 S. W. 120 ; Clark v. Briley, 193 S. W. 422. This case cannot be distinguished from the case of Brown v. Mitchell, supra, and if article 3690 applies to any ease involving the probate or validity of a will it appears that it would apply to this case, for it is one by pretermitted heirs against the devisees and executor named in the will. That the statute has application to some cases involving the probate of wills is expressly stated or taken for granted in the cases of Gamble v. Butchee, 87 Tex. 643 , 30 S. W. 861 ; Martin v. McAdams, 87 Tex. 225 , 27 S. W. 255 , and Ingersol v. McWillie, 9 Tex. Civ. App. 543 , 30 S. W. 56 , and 87 Tex. 647 , 30 S. W. 869 . If it be held not to apply in a will contest case, it can only be upon the grouhd that the suit is not between parties such as are described in the article, or on the ground that the language of the last portion of the article descriptive of the suits to which the provisions of the first part have been extended is not broad enough to include the particular "contest. In the early case of Parks v. Caudle, above cited, our Supreme Court held, in a suit by heirs against heirs, and therefore coming within the latter portion of said article, that the testimony inhibited by the first portion thereof was not merely statements by the deceased to the witness, ■ or transactions between the deceased and witness, but also statements to or transactions between deceased and third persons, and that, too, occurring when the witness had no interest therein. It also held that the expression “transaction with such dec%deht,” found only in the latter portion of said article, is broad enough to include the execution of a deed by the decedent to one whose heirs are claiming under it. The statute was also applied in the case of Reddin v. Smith, supra, which also may be said to have arisen out of transactions by the decedents with others than those who were parties to the suit. These cases were decided by the court while Judge Stayton, who wrote the opinion in Brown v. Mitchell, was a member thereof. The decision in the last-mentioned case, it appears, is in harmony with the earlier decisions. It is suggested, however, that later decisions of the Supreme Court modify the holding in Brown v. Mitchell. The case of Martin v. McAdams, supra, is especially relied on. It appears that certain reasoning adopted from a Kentucky case not available to us, and used for the purpose of illustrating the rule of construction as to what is a transaction, if such reasoning is followed to its logical conclusion, would limit the application of the statute to suits the purpose of which is to take away funds or property from the estate of a deceased person, and to deny its application to suits involving the rights of heirs to the estate. To give such a broad effect to the language would be to deny the purpose of the statute, as stated by the same great judge in writing the opinion for the court in the case of Moores v. Wills, 69 Tex. 109 , 5 S. W. 675 , and stated by our courts in other cases. As two members of the court participated in the decision of the case of Brown v. Mitchell, and no comment is. made with regard to such ease, it cannot be presumed that the court intended to announce a rule in conflict therewith. It is also evident that, if the court had been of the opinion that the statute only applied to suits the purpose of which was to deplete the estate, it would hardly have gone to so much trouble to discuss the particular evidence, and hold that the statute did not apply to such evidence. It is also made a matter of comment that the Supreme Court, in the case of Sanders v. Kirbie, 94 Tex. 564 , 63 S. W. 626 , based its decision upon the assumption that the statute applied to that case, which asumption had been made by the Court of Civil Appeals in its certified question. It is true the court refrained from committing itself, but whether because it was unnecessary to do so, or because the suit was one in which all parties were legatees or devisees, and therefore not based on the identical facts shown in the case of Brown v. Mitchell, is a. matter of surmise and conjecture. There can be no question in this casé that the suit is by persons such as are specifically named in the statute, and we will therefore not discuss the question of persons. Recurring to the question whether the case> falls within those covered by the statute, it must be admitted that appellants’ theory is supported by authorities from other states and by statements contained in some of our decisions; also that the question is one upon which there is room for a difference of opinion. It is stated in the case of Parks v. Cau-dle that it was believed the codifiers, in add *1032 ing the last portion of the article, did so for the purpose of incorporating into the statute the decisions of Lewis v. Aylott, 45 Tex. 202 , and McCampbell v. Henderson, 50 Tex. 002 . If they intended to incorporate only cases identical in the facts with such cases, the statute, in so far as it relates to suits by or against heirs or legal representatives, would apply only when the suit arose out of a transaction by parties to the suit with decedent. Cut the court did not adopt this strict construction in deciding the eases of Parks v. Caudle and Brown v. Mitchell. As before stated, the case of Brown v. Mitchell i§ controlling, being practically identical as to facts with this case, and we find no ground for believing that it will be overruled by the Supreme Court, especially after it has received legislative sanction by re-enactment of the statute without change of verbiage. The Supreme Court has not, as far as we have boon able to ascertain, been called upon to again pass upon the direct question. It referred the application for writ of error in the Clark v. Briley Case, hereinbefore cited, to the Committee of Judges of the Courts of Civil Appeals, who refused such application. Appel-lees call attention to the fact that in the application in said case, and also that filed in the case of Ross v. Kell, 159 S. W. 120 , a conflict was alleged between said decisions and the case of Simon v. Middleton, 51 Tex. Civ. App. 531 , 112 S. W. 441 , and that by referring the application in the one and dismissing that in the other the court decided there was no conflict. The assignments are all overruled. [2] There is no merit in the fourteenth assignment. The court, in addition to defining mental capacity in the main charge, which definition was not objected to, gave plaintiffs’ special charge No. 2, which again explained to the jury what was meant by mental capacity. Plaintiffs were not entitled to an additional charge on mental capacity, even though it be conceded to state a correct abstract proposition of law. To have given it would have been to unduly emphasize the issue, and, in view of the wording of the special charge refused, the court was not only justified in refusing it, but would have committed error had he given’it. The testimony, the exclusion of which is complained of in assignments 18 to 24 inclusive, is of the same character as that considered in disposing of assignments 7 to 13. In fact, for authorities and remarks we are referred to the seventh assignment. The assignments are all overruled. [3, 4] By the twenty-fifth assignment complaint is made of the overruling of a motion in writing to have jurors summoned who had been selected by the jury commissioners but not summoned by the sheriff. The facts, as disclosed by the bill of exceptions, are: That the jury commissioners selected 25 jurors for the seventh week of court. The list was issued July 2, 1917, and returned July SO, 1917; the sheriff showing by his return that 10 of the jurors were served by notice in person, and that the remainder were not served because “not found after due diligence and search.” The case was set on August 1, 1917, by agreement of counsel, for the seventh week of the term, which week began on September 10, 1917. On Monday, September 10th, it appearing to the court that a sufficient number of jurors were not in attendance, the panel was completed in the manner prescribed by law, and the' jury impaneled, including the original 10, and sworn as jurors for the week. Other cases were tried by juries selected from such panel, and on September 14, 1917, when this cause was called for trial, the jurors thus impaneled were in attendance on court. The plaintiffs made an oral motion, in substance the same as the written motion, which was overruled. In the written motion plaintiffs alleged that the return stated the conclusion of the sheriff, and did not state facts showing any diligence, or reason why the jurors were not summoned; that some of the jurors, and it may be many of them, were qualified jurors and lived in Nueces county; that the sheriff in fact used no diligence to summon them, and that one of them lived on a farm about seven miles from Corpus Christi. They prayed that they be permitted to question the sheriff as to the residence of said jurors, their availability at that time, and the steps taken to summon them, and requested that the sheriff be required to amend his return and state the facts showing what diligence, if any, he used in an effort to summon said 15 jurors, and whether or not he left notice to them. They further prayed that he be required to summon said jurors forthwith to attend court, and that the jurors, when so summoned, be placed on the list of jurors for the trial of the case. The defendants demurred generally to the motion, and alleged the facts, substantially as hereinbefore stated, and that, if the motion should be granted, it would tend to affect the disposal of the business of the court. The court sustained the general demurrer, and qualified the bill of exceptions by stating that the statements contained in the answer were at the same time made to appear to the court to be true and correct; that it was the opinion of the court that, even if the jurors were ordered to be summoned, they could not, if found, have been brought into court until after the setting of the case was lost, which would have resulted in a continuance; and that everything appeared to the court as regular, other cases' having been tried before the same panel, and the parties having agreed to a setting of £lie case for the particular week, with their eyes open to the fact that all of the jurors had not been found. As the court did not permit the plaintiffs to interrogate the sheriff, or require the sheriff to amend his return, it must, we think, be presumed that the court was of the opinion that, *1033 even though the sheriff had failed to do his duty under the law, plaintiffs were not entitled to object to the panel, which, under the provisions of the statutes, had been provided to serve for the seventh week. The court is not required to try the question of the diligence of the sheriff before causing sufficient jurors to be summoned to make up a suitable panel for the week, but, in order to proceed with the dispatch of business, may complete his panel as provided by articles 5167 and 5168, R. S. 1911, regardless of the reasons for the absence of the jurors selected by the jury commissioners. G., H. & S. A. Ry. Co. v. Perry, 38 Tex. Civ. App. 81 , 85 S. W. 63 . If it were conceded that circumstances might exist which would require of the court such relief as was prayed for in the motion, it appears to us that steps should be taken to invoke action by the court at a time when it would not require the discharge of a portion of a panel from which cases had been tried for four days out of the week. We overrule the assignment. The judgment is affirmed.