To Find the Gates of Heaven

The Legal Fight Over the University of Texas McDonald Observatory Legacy

William Johnson McDonald was born in December of 1844 when Texas was still, just barely, an independent Republic. His father Henry was a physician, one of the few certified medical professionals on the frontier. Dr. McDonald settled in Lamar County where Paris was incorporated in February 1845. William was educated at the McKenzie Institute in nearby Clarksville, and later apprenticed to a law firm in Mount Pleasant, Titus County. He served briefly in a Texas regiment of the Confederate Army, but saw little or no action and never left the state. After the war he returned to Clarksville and opened a law practice. Income from the practice enabled him to make small loans and buy Red River county warrants at a fraction of their face value during the depression of the 1870s. Those warrants regained their value after the depression and nearly overnight made William McDonald wealthy. Sensing he was in the wrong business, he abandoned legal practice and moved to Paris to become a full time banker. With his brothers’ help, McDonald founded several banking institutions in Clarksville and Paris. The banks proved successful and made McDonald a very wealthy man. He lived most of his life in Paris, but traveled extensively. Other than his banking career, he had numerous side interests, including literature, botany, geography, and most important for this discussion, astronomy. McDonald never married and had no children.

On May 8, 1925, McDonald executed a will leaving specific pecuniary gifts of $15,000 each to eight relatives, who appeared to be heirs at law. The rest and residue of his estate he gave, in trust, to the University of Texas for the specific purpose of establishing an astronomical observatory. The will nominated Morris Fleming, cashier of the Paris bank, and the First National Bank of Clarksville as co-independent executors.

William McDonald died February 6, 1926, nine months after making the will, at the age of 81 years. His estate was valued at approximately $1.25 million.

The will was admitted to probate in the county court of Lamar County, and later, after a contest and appeal, in the District Court. Seven heirs contested the will, alleging that McDonald did not have testamentary capacity at the time of execution. They generally denied the application and specially pleaded as
follows:

“On the 8th day of May, 1925, the date of making said purported will, and prior thereto and up to and including the 8th day of February, 1926, the day of his death, W. J. McDonald, deceased, did not have testamentary capacity to make a will; was of unsound mind; and did not have mental capacity to know, understand, and appreciate the character, amount, and extent of his property or the objects of his bounty, or the real disposition he was making, or attempting to make, of his property by the instrument offered for probate.”

A jury was empaneled and, after presentation of evidence, the court submitted the case on a single special issue: “Did or did not W. J. McDonald have testamentary capacity on May 8, 1925, at the time he executed the will in controversy?”Accompanying the issue was an instruction defining testamentary capacity:

“To make a valid will, the person making the will must have testamentary capacity at the time of the execution of the will. By testamentary capacity is meant that the person at the time of the execution of the will has sufficient mental ability to understand the business in which he is engaged, the effect of his act in making the will, and the general nature and extent of his property. He must also be able to know his next of kin and the natural objects of his bounty. He must have memory sufficient to collect in his mind the elements of the business to be transacted and to hold them long enough to perceive at least their obvious relation to each other, and to be able to form a reasonable judgment as to them.”

The contestants requested an additional instruction that

“If at the time of the execution of the will by [the testator] was under the influence of an insane delusion or delusions affecting the disposition of his property which he was making, then you are instructed that he did not as said time have testamentary capacity. An insane delusion is the belief of the existence of a state of supposed facts which no rational person would have believed.”

The district court refused the instruction and the jury answered that McDonald had testamentary capacity when he executed the will.

Upon appeal, the Texarkana Court of Civil Appeals affirmed. The issue in the Court of Civil Appeals was whether the court should have given the “insane delusion’ instruction to the jury.

The contestants made four contentions and referenced evidence allegedly supporting them that raised a fact issue as to McDonald’s “insane delusion” affecting his testamentary capacity:

• That McDonald was suffering with an insane delusion of poverty.

• That McDonald was suffering with an insane delusion that a certain relation in law had wrongfully deprived him of certain of his tablecloths, napkins, and books.

• That McDonald was suffering with an insane delusion that he had to protect himself against his nephew, one of the contestants, who, he thought, intended or desired to murder him in his home on Clarksville street.

• That McDonald was suffering with an insane delusion that some day astronomers would be able to see the gates of heaven, and when we got (to) that we would be able to see who was inside of heaven; that it was only a question of time when they did that, and then this would be the next great wonder of the world, and it needed only a little money.

The Court of Appeals affirmed the district court ruling that

“After a careful consideration of the record, we conclude that there is no sufficient evidence in respect to the objects of delusion, considered singly or all together, upon which to found a finding of fact of insane delusion or delusions affecting the testamentary capacity of the testator. We conclude the evidence is ample and greatly preponderates in support of the jury verdict, arrived at under proper and complete and duly approved instructions.”

Specifically addressing the insane delusion issue the Court discussed the testimony of Autrey Burnett, McDonald’s barber, to whom the testator said “some day or another astronomers would be able to see the gates of heaven, and when we got to that we would be able to see who was inside heaven.”

The Court opined that “[a]ll the evidence goes to show that the real force and substance of the spoken declaration was that of a pure predication or avowed belief of the scientific progress ‘some day or another’ of astronomy, with proper equipment and funds for observation. At most that was the force and effect of the spoken words of the mere chance conversation, even though couched in language extravagant or facetious.”

“. . . that it is plain that the will in suit, in its provisions as to the erecting and equipping of an astronomical observatory at the University of Texas, was not the result of any sudden impulse, but of a definite and deliberate purpose and testamentary intention formed and adhered to in former years by the testator while sufficient soundness of his mind and memory admittedly existed. The same specific bequest appeared in the first will in 1915 and was inserted in each of the five other wills made respectively during the ten years to 1925. The fact that the testator supervised his own large estate wisely and prudently during the times of these wills until the date of the will in suit opposes an inference that he was of an irrational mind to a degree to incapacitate him from making the will and disposing of his property as he did. It was long known to the testator’s most beloved and trusted brother that it was his purpose to make the specific bequest.”

Regarding McDonald’s alleged belief about astronomers some day seeing the “gates of heaven” and see in there, the Court said

“. . . testator was shown to be for years “very much interested in astronomy, plant life, and botany.” There is no pretense in the evidence of a sudden change or departure in the last will of testamentary intent indicated in the bequest to the regents of the University from ordinary habits of thinking and acting in that respect.
* * *
“And, as predicated by the testator according to the witness, ‘astronomers would be able,’ in figurative expression, ‘to see the gates of heaven,’ in the wide generalization of ‘some day or another,’ and “see who was inside heaven.’ In applying these considerations to the particular declaration it is most likely and natural that the words of the testator were ‘see the heavenly bodies’ rather than ‘see who was inside heaven.’ The very terms of the will, made two weeks afterwards, evidence the mind of the speaker at the time in ‘the study and promotion of the study of astronomical science.’ All the evidence goes to show that the real force and substance of the spoken declaration was that of a pure predication or avowed belief of the scientific progress ‘some day or another.’
* * *
“It is not capable of disproof that there may not be progress and perfectly established scientific theory, founded on the widest study of the celestial regions, of which at present we apparently know so little. The belief has prevailed among thinking man of telescopes being made with powers far exceeding our present ones to ‘see’ or observe ‘the heavens’ and ‘the heavenly bodies.’”

McDonald’s relatives were dissatisfied and pressed on to the Texas Supreme Court. From 1918 to 1945, the Supreme Court consisted of three Justices. It was assisted by a Commission of Appeals that comprised two sections each having three Commissioners. With the consent of the parties to a suit, the Court would assign some petitions for writs of error Section A or Section B of the Commission. The Court granted a writ of error and assigned hearing and consideration to Section B.

The Commission considered the contested question of whether the evidence presented raised the issue of insane delusions. If so, it opined, it was necessary to giving of the requested jury instruction the trial court declined to give. The Commission considered the testimony and concluded, and the Court concurred, that the evidence did raise the issue. Thus, the trial court and the Court of Civil Appeals erred in holding to the contrary. Commissioner Speer wrote an opinion reversing the Court of Civil Appeals.

The Commission recognized that

“[i]nsane delusions are not within themselves a ground of attack against the probating of a will, except as they show a want of testamentary capacity. In other words, the real defense is want of testamentary capacity, whether such want of capacity is produced by ordinary and complete insanity, or by temporary aberrations or insane delusions. The real vice, from a judicial standpoint, in either case that vitiates the instrument, is want of capacity. So that, where want of capacity is pleaded as ground of contest, though general in the form of its expression, nevertheless that mental defect may be proven in any of the ways recognized by the law of evidence.”

But the Commission found persuasive that

“a reproduction of the hypothetical question propounded by contestants to Dr. Guy F. Witt, a practicing physician, and a specialist in nervous and mental diseases, together with his answer, will show conclusively, we think, that the issue of want of mental capacity through insane delusions was raised by the testimony. The hypothetical question finds support in the statement of the evidence. . ..”

The hypothetical question and the answer addressed the four contentions that the Court of Civil Appeals considered.

The Commission concluded that “[w]e base our conclusion, not only upon the facts recited in the hypothetical question, which, as we have said, the evidence tends to show, but upon the affirmative answer of the expert witness that the testator was, on the 8th day of May, 1925, of unsound mind.”

The Court then approved the holding of the Commission on February 29, 1928, and reversed and remanded the judgments of the district court and the Court of Civil Appeals, and remanded the cause to the district court.

Re-trial of the case commenced in Paris in late October 1928. The evidence was more or less the same as in the previous trial, but there was more of it. Several witnesses testified that they heard McDonald talk about looking into heaven and there were arguments on whether he meant Heaven or the heavens. The barber who earlier testified that McDonald made a point of privately telling he believed some days astronomers would find the gates of heaven now said that McDonald was “off his caboose.”

The final argument to the jury lasted 6 ½ hours for each side. There are several appeals to the presumably fundamentalist religious beliefs of some jury members. One contestant lawyers went so far to argue that “if the University of Texas does not believe W. J. McDonald suffered from an insane delusion about the gates of heaven, that does not believe in the Bible and is no fit place to send Boys and Girls.” Apparently that worked for at least two—another demonstration that a trial lawyer must know his jury. It hung ten in favor of the will, and two against.

The University at this time had spent close to $80,000 (in 1928 dollars) on attorneys. The parties settled for distribution of $250,000 for the plaintiffs, and the balance of around $840,000 to the University. After solving several logistical problems, the McDonald Observatory, on a mountain near Fort Davis, Texas, became a reality.

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