The opinion
On Motion for Rehearing.
We shall not undertake to state every fact submitted to the jury, or the conflicting testimony as to material issues, and therefore refuse the request for additional findings, set out in the motion to the extent of more than 30 pages. Our conclusions of fact have been stated in the original opinion. We will briefly discuss the appellants’ contention that certain rules of law require that the evidence in this case should be held insufficient to sustain the verdict, and in doing so it will be necessary to state briefly some of the facts proven.
The contestants called Walter F. Timón to testify, and proved by him that his mother lived alone, after the death of his father, in Corpus Christi, from the year 1900 to the time of her death, December. 30, 1914. He was the only one of her children who resided in Corpus Christi until May, 1912, when E. C. Timón moved to that city. Walter Timon, when in the city, visited her daily, after he moved to Corpus Christi in 1902, and looked after her welfare, and after 1907 assisted her with her business affairs, such as renting houses, collecting rents, and payment of taxes. If she consulted any other lawyers during that time, or any intimate friends, he did not know of it or recall it. He had no knowledge of his mother consulting with any one except himself concerning the making of the will. He testified that upon one of his visits his mother was reading a newspaper, and called his attention to the fact that some one’s will had been probated, and stated that she was thinking seriously of making a will, to which he replied that every one ought to make a will; that she stated she would have given all of her property to his little boy, if he had lived, and that she felt she ought to leave it to him, because he had been so good and kind to her; that he told her to please not make such disposition of her property, and she told him he was a goose; that she told him to bring some paper the next day and take down a memorandum of her will, and then take it over to a lawyer to have him rewrite it; that he came the next day, and she dictated the disposition she wanted to make of her property; tñat he wrote the legal phraseology; that he made no suggestions whatever as to the manner in which any portion of the property should be devised; that Mr. Kleberg, of the firm of Kleberg & Stayton, prepared the will; that it was copied off or reduced to typewriting in Kleberg’s office, but he did not recollect who did the typewriting. He testified that he took the will to his mother, and read it to her, and she read it over carefully, he thought, three times; that he left the will with her; that she asked him to have Hugh Sutherland and Joe Downey come there to witness the will; that he told them of his mother’s wish; that he was at his mother’s house while the will was being signed, but did not go into the room where his mother and the witnesses were signing the will; that he did not think it a proper place for him to be, and so did not go in; that afterwards, he thought the next day, his mother gave him the will to place in the First State Bank; that he did so, and it remained there until after her death, when he took it out and made application to have it probated. He informed no one of the existence of the will until after it was admitted to probate.
Appellants deduce from this testimony, and the disposition made by the testatrix of her estate, the following propositions: (1) That Walter Timón stood in a confidential relation to his mother; (2) that he wrote the will; (3) that he took approximately $200,000 under the will out of an estate worth $500,-000 to $550,000; (4) that he maintained secrecy with regard to the execution and existence of the will; and that he had ample opportunity for exercising undue influence. They also contend that the will is unjust and unnatural, in that the children of Mrs. Timon’s deceased son, John, and her daughters, Mrs. Leahy and Mrs. Dolan, are pretermitted. It appears that John Timón and Mrs. Leahy left the parental home about the year 1879 or 1880, and were given a ranch by their parents, which was charged against them as an advancement after the death of their father. The other children stayed at home. Walter Timón and E. C. Timón testified that Mrs. Timón was not satisfied with the partition made, in so far as it involved John Timon and Mrs. Leahy. Walter Timón stated that this dissatisfaction arose from the fact that the ranch was put in at its value when received, instead of at the date of the partition. He and one of his brothers also testified that it was understood, when John Timon and Mrs. Leahy received the ranch, that *1034 it was, all they were to receive. In fact, Walter Timón testified that his mother told him that the reason they should not have any of her property was because the division made after the death of her husband was unfair, and that they got too much. As to Mrs. Dolan, whose son was bequeathed a portion of the property, a motive for preter-mitting her was testified to by Walter Timon, in that he stated she and her mother had frequent bitter disputes, and that Mrs. Dolan was unkind to her mother. That the relations between Mrs. Dolan and her mother were strained is shown by a letter written by Sirs. Dolan to Walter in December, 1910, in which she states that she guessed her mother was still “sore” at her, and requested AValter to ask Mrs. Timón to make her a loan.
There is testimony from which the jury could find that Harry, E. 0., and Walter Timón assisted in building up the parental fortune, and that Mrs. Barry visited her mother more frequently than the other sisters, and that Mrs. Barry visited her mother very often, and showed her many courtesies, and that the relations between them were very pleasant. There was also testimony from which the jury could find that Mrs. Timón had stated that her property was for all of her children, and had mentioned an intention of giving, without stating how, each of her daughters a house in Corpus Olirisli, which the witnesses stated were built exactly alike, but which were shown by Walter Timon’s testimony to be very materially different in size and value. The most valuable of the three was devised to Harry Timon Dolan. It would be useless to discuss all of the testimony. The above is stated merely for the purpose of showing what light the jury had upon the question whether the fact that certain children were pretermitted made the will such an unnatural and unjust one as to stamp it with suspicion.
It is of course well established that fraud and undue influence may be proved by circumstantial evidence, and appellants take the propositions above stated as deduced by them, and contend that the undisputed facts raise a presumption of fraud and undue influence, which they say must be overcome by tire proponents by clear and satisfactory evidence, or at least by a preponderance of the evidence. The circumstances relied on are recognized by courts and text-writers as suspicious ones, which, however, as far as we can ascertain, furnish no such presumption as would authorize a charge shifting the burden of proof, but which do raise presumptions of fact of more or less strength, in view of the other facts adduced, to be weighed and' considered by the jury in determining the final' issue whether the contestants have, by a preponderance of the testimony, shown that the will was procured by fraud or undue influence. In support of this view we cite Schouler on Wills (5th Ed.) §§ 246, 231, 238, 239, 245, 247; Alexander on Wills, §§ 394, 585 to 588, 594 to 597, 615; note, 28 L. R. A. (N. S.) 275. We consider our cases to be in line with the above statement. Barry v. Graciette, 71 S. W. 309 ; Patterson v. Lamb, 21 Tex. Civ. App. 513 , 52 S. W. 98 ; Goodloe v. Goodloe, 47 Tex. Civ. App. 493 , 105 S. W. 533 ; Gallagher v. Neilon, 121 S. W. 565 ; Mayes v. Mayes, 159 S. W. 919 ; In re Bartels’ Estate, 164 S. W. 859 ; Beadle v. McCrabb, 199 S. W. 355 .
We do not regard the cases of Vickery v. Hobbs, 21 Tex. 571 , 73 Am. Dec. 238 , and Kelly v. Settegast, 68 Tex. 13 , 2 S. W. 870 , as being in conflict with the rule as above stated by us. There are expressions in the opinion in such cases, made in discussing the evidence, to the effect that the circumstance that a beneficiary wrote the will is a suspicious one, and it ought to be made to appear clearly and satisfactorily that the testator was not imposed upon. These cases cannot be construed as announcing a rule that the burden of proof shifts, so that the court would be authorized to charge thereon, but are to the effect that a circumstance which is so strong in connection with the other facts as to raise a presumption of fact that the testator did not know the contents of a will can only be removed by testimony showing clearly that he did know such contents. In the case of Rounds v. Coleman, 189 S. W. 1086 , the court appears to have been inclined to adopt appellants’ theory that the burden of proof shifts, and that the rule as to confidential relations is the same with respect to wills as to gifts inter vivos, but found it unnecessary to decide the point for the reason that it held there was no fiduciary relation to call for the application of any such rule. There is ample authority for the proposition that the strict rule applied to gifts inter vivos does not apply in the case of wills. Schouler on Wills, § 246; note, 22 L. R. A. (N. S.) 1034. In the case of Bancroft v. Otis, 91 Ala. 279 , 8 South. 286 , 24 Am. St. Rep. 904 , the court discusses at length, and very satisfactorily, tire reasons upon which the difference is founded.
[5, 6] The appellants made no objection to the charge of the court as to the burden of proof and no request for a special charge on the theory that the burden shifted; but, as we understand their contention, it is that this court, in weighing the evidence, should place the burden, at least as to fraud and undue influence, upon the proponents, and determine whether by clear and satisfactory evidence, or at least by a preponderance of the evidence, they have affirmatively proved there was no fraud or undue influence. Our conclusion is that by the great weight of authority the burden of the whole case remains upon the contestants as to fraud and undue influence. The circumstances designated by courts and text-writers as sufficient to cast suspicion upon the will must be weighed 'by the jury in connection *1035 with the other evidence, and it is obvious that the strength of any presumption of fact to be drawn therefrom is dependent upon the other facts in the ease. However, if the testimony as a whole supports the verdict, it must be upheld, and questions of credibility must be decided so as to support the verdict. The evidence was sharply conflicting on the issue of mental capacity and whether or not Mrs; Timón had sufficient eyesight to read at the time she signed the will. Taking the testimony favorable to the verdict as true, it appears that Mrs. Timón was not only of sound mind, but that she was a woman with .a vigorous mind, of good business ability, who had ample intelligence and capacity to fully understand and comprehend the language in which the will was drawn. 'In this connection we will state that tjie will was drawn in very plain terms. No one who read it could have any doubt as to what each person mentioned therein was to receive, and that the entire estate was disposed of. It also appears that Mrs. Timón could read by the aid of her glasses, that she had the 'will in her possession, and had ample opportunity for acquainting herself with its provisions. One of the subscribing witnesses asked her, or stated to her, in a manner implying a question, that she had read it over and knew it was her will, and she replied, “Yes, and it is all right.” The testimony of Walter Timón also shows that he read the will to her, and that she read it herself several times. The testimony supports a finding that Mrs. Ti-món was a woman of great strength of character, independent and determined, who thought and acted for herself, and could not be easily influenced by any one. In view of all of this, the jury was warranted in finding that she actually read and understood the will. It is true that Walter Timón assisted her in such small legal matters as presented themselves after 1907, and helped her rent her houses and collect rent; but the evidence discloses that even in such matters she reserved the ultimate control of her business affairs, and acted contrary to his advice upon certain occasions. The facts were not such as to create what the law would term the confidential relation of attorney and client, for what he did for her was because she was his mother, and the relation of mother and son, between whom there existed a deep affection, precluded the more distant one of attorney and client. Mr. Alexander states in section 594 that:
“The effect of a confidential relationship between testator and legatee, as suggestive of undue influence, is materially different where the legatee is a child, not a stranger, for in the former case the relationship of strict confidence and of participation in the testator’s estate is natural.” t
According to Walter Timon’s testimony he gave her no advice as to how to devise her property, other than that he told her not to bequeath it all to him. Much is said concerning the proposition that it was not shown that Mrs. Timón had competent and disinterested advice, and that Walter Timón did not give her full and disinterested advice, and it appears that this is regarded as conclusive ground for setting aside the verdict. It is true that Walter Timón gave her no ad-vieej except not to will all of her property to him. We do not understand that he was called upon to press the claims of others. The matter of advice does not, as we understand it, go to the question of who is to receive the property, but to the question of whether the testator is fully informed as to the actual contents and meaning of the will. If the’ testatrix has a mind capable of comprehending and fully understanding the provisions of the will, andi is shown to have had it read to her correctly, or to have carefully read it herself, we fail to see howl it-would be necessary for her to have any advice. The absence of advice can only be a circumstance to 'be considered by the jury, and the weight of such circumstance is necessarily dependent on the question whether the terms of a will are plainly drawn, and whether the testatrix is intelligent enough to read and understand the same.
[7] The appellants could not place Walter Timón on the stand without incurring the risk that his testimony would be believed by the jury, and, the jury having believed it, they cannot contend that this court is authorized to discredit it. His testimony as a whole is sufficient to destroy any inferences of fraud or undue influence which can be deduced by considering only certain facts to which he testified. The case is one in which an appellate court, in our judgment, cannot set aside the verdict without a clear invasion of the prqvince of the jury, or giving conclusive effect as a matter of law to certain suspicious circumstances, which we regard as under the great weight of authority to be merely inferences or presumptions of fact to be weighed by the jury.
The motion for rehearing is overruled.