Barziza v. Graves, 25 Tex. 322

Barziza v. Graves

25 Tex. 322 | Tex. | 1860

Bell, J.

The defendant in the court below proposed to read in evidence what purported to be the will of Ralph Graves, deceased, dated December 13th, 1851, and also the petition of Adaline Graves and M. Yell, to the County Court, for the probate of said will, and for letters testamentary in accordance with its provisions. -- The court refused to permit this evidence to go to the jury, in which ruling we think there was error. The will which was offered in evidence showed that the deceased, Ralph Graves,, had disposed of the negro woman and child in controversy, as his own property. The dispositions of the will, in relation to this woman and child, amounted to a clear act of ownership on the part of the deceased, which ought to have been submitted to the *324consideration of the jury, inasmuch as the plaintiff’s claim to the woman and child was supported solely by parol evidence of the oral declarations of the deceased. In the case of Bradshaw v. Mayfield, 18th Tex., 21, it was said that “verbal sales and gifts between husband and wife ought not to be admitted, unless on clear and satisfactory proof that the property was divested out of the vendor or donor, and vested in the vendee or donee.” Where it is attempted to establish a gift from the husband to the wife by evidence of the husband’s declarations alone, the courts should exercise great caution in not excluding from the consideration of the jury, any admissible evidence which would tend, though in ever so slight a degree, to counteract the evidence of the husband’s declarations. The bequest of the property in the will, in the present case, was an act of ownership. It might be considered as a declaration that the property bequeathed was the property of the testator, of which he had a right to dispose at his pleasure.

We think, therefore, that the will, and the petition for its probate, and for letters testamentary under it, should have been admitted in evidence, that the jury might attach such weight to ¡this act of ownership on the part of the deceased, and to the plaintiff’s act in seeking to establish the will, as to them might seem proper under all the circumstances of the case.

The judgment of the District Court is therefore reversed, and the cause remanded for another trial.

Reversed and remanded.