*1 146, REPORTER SOUTHWESTERN good delivery recorded, writing or is a an given is ex- tee in which be grantee; the form ed and with but where instrument purpose by of pressed, nature and bnt acknowledged of a will not or attest- itself. the transaction by any witnesses, could not in the trial error was no think there We the scrivener who wrote not instructions to have would appellant here com- below as a deed. make valid judgment is affirmed. plain, and the cases, Deeds, see Cent. [Ed. Note.—For other Dig. Dig. 130-135; 625-632, 634, §§ Dec. 208-217; 58;* Dig. Wills, Dec. §§ Cent. Dig. § 88.*] al.† et v. CARTER et al. BELGARDE 88*) (§ and Essentials. 7. Wills —Nature Antonio. of That instrument the form a (Court Texas. an of San Civil of such Motion for Re and intended to be for invalid 1912. On March by hearing, May 1, 1912.) credible failure have it attested two witnesses not transform it of itself (§ 114*) Attestation—Necessity. 1. Winns — a deed. by prescribed steps to be the statute cases, Wills, [Ed. Note.—For see Cent. other executing be shown must a will 208-217; Dig. Dig. §§ 88.*] Dec. § of testa- instrument before an have concurred recognized mentary as a valid will be character Appeal Court, from District Wilson Coun- form a will; which is and an Stevens, ty; Judge. E. A. such, inoperative will, attested where and void Trespass try by Belgarde and C. A. witnesses. title more credible two cases, Wills, Cent. against see other [Ed. Note.—For others Marsh Carter and others. 277-279; Dig. Dig. 114.*] § Dec. §§ judgment an verdict From instructed — —88*) plaintiffs Animus (§ defendants, appeal. Affirmed. Construction Wills Testandi —1 ‘Deed.” Ballard, King, A. F. E. Can- writing B. and J. will or Jas. whether The test testandi, and, where_ animus Floresville, appellants. deed field, all O. disposition intends an instrument maker of Morris, McCracken, Cone, C. A. and T. P. testamentary, legal the writ- effect is in appellees. Floresville, for merely if he be held a made convey present interest estate or intends to is a “deed.” FLY, trespass This an action J. cases, Wills, Cent. other see [Ed. Note.—For try title, and Fannie Arnold instituted Dig. 208-217; Dig. 88.* Dec. §§ Henry Duglosch Arnold, husband, her Maisie Phrases, definitions, see Words and For other Wiley, Duglosch, husband, John Eva 1919-1924; 8, pp. 2, pp. 7461- vol. vol. husband, Belgarde, joined by her Elizabeth C. A. 7468.] Wiley, Wiley, Belgarde, John James 88*) (§ 3. Wills —Construction—Intention Galloway Wiley, her hus- Martha Louis to Devise. person for a on his deathbed Where Henry Galloway, Wiley, band, William an Wiley against Hyman Criss, Allen Charles disposing an instrument of all his Stroud, scrivener, Marsh Carter to recover two such which was “my stating that it is last county. substance land Wilson The court tracts of consideration, mentioning will,” etc., expresses appellees. a verdict instructed than to intention' to devise rather The decision this case turns convey, than a a will rather must 'be held following instrument, ap- deed. construction of cases, Wills, pellants contending Cent. see [Ed. other Note.—For Dig. Dig. 208-217; §§, § 88.*] Dec. appellees be a will: 88*) (§ County I, Texas, 4. Wills Louis “State of of Wilson. —Construction—Intention Language of Testator — Used. sound, Wiley, being of mind make this in an used bequeath give my es- last will: I devise determining controlling is to be whether it may personal a will or as fol- construed as considered, mine the intention real and tate circumstances, to deter- with other give say, I and be- lows that queath is to devise of the maker. Margaret Wiley wife unto Jane Wills, cases, Cent. other’ see Note.—For fEd. thirty-eight and one-half one hundred Dig. Dig. 208-217; § 88.*] Dec. §§ being my more home- acres of land or less 88*) (§ 5. Wills —Constbuction—Intention occupied myself stead, garet Mar- now wife oe Testator. While, bequeath give under art. Rev. St. I devise and Jane provides ance or inherit- that an estate freehold Wiley George Ann W. & Clestice to wife futuro be made to commence in George W. and the heirs of conveyance, will,” “in manner as like land, bodies, acres be- provided their ing one hundred the fact that Conception Losoya should take (16) of Lot No. controlling after the death the testator League County, Labor Wilson Texas. & determining it was a will or deed. whether bequeath, m.y give, devise and unto cases, Wills, [Ed. Cent. Note.—For see Margaret Wiley, one Jane 208-217; Dig. Dig. §§ § 88.*] land, equally hundred to be owned acres (§§ 88*) 6. Deeds —WIlls —Execu them, Delivery. and controled between and not to be tion — prima While of a deed is to disposed facie them, either of sold grantee, evidence and will Margaret Wiley, my said usually equivalent thereto, held to deliv- and it will Margaret ery to an officer who took the gran- upon of with instructions to deliver it demise either the said Dig. Dig. topic Key Rep’r *For othor oases see & &Am. No. Series Indexes same section NUMBER in Dec. by Supreme †Writ error ol denied Court. *2 Tex.) CARTER BEL&AK.DEv. 965 surviveer ing horses, will that the said cattle and nesses, Margaret Wiley.” Jane the the sealed and ly had neither been recorded nor ter into and both afterwards and he was executed lees herein. said ley tice. office: carried maker she er. After curred will. T. P. Morris swore that possession Wiley.” I Nañcy Wiley agreement Margaret Wiley, 00 inwas 1890. Will of may Margaret handwriting person him if I died before I made that when the instrument was I Mrs. Johnson of Louis A. day Margaret after the and it was officeof Wilson write strument as contents is day above Morris give Mrs. give divided between per agreement instrument, death; envelope said “it following She one hundred live real Wiley In named the death of devise and “We his instrument nor November annum wit signed it, to put Maggie Johnson, or to be delivered to either of us devise that he deem July, will, kept witness whereof have said amount death Jane J. Jane be remain 1903 deathbed, acknowledged, gave room, instrument off with him it in his and it was shown agree published deposited parties take owned and will that the sum of Fifteen Dollars Justice since her husband’s She proper, might in which was the ¿vhile sold all it three or four and when he came back was made A. D. was written on the back of and personal, to remain in L. Wiley George Wiley, had it to the widow of the mak- be taken out acres of land more or less. possession that this had in full and three or four bequeath was not who George Wiley, instrument. m.y Margaret bequeath each Louis A. be worth about maker, and, pocket written a will. to at that her Wiley. and declared this in- The to Magee thought at untill we both other. December J. brothers and W. signed without controled be because at be Mrs. Johnson year the former widow and was not in the that my land possession George Wiley, eight days envelope peace, her death above named en- keep paid unto paid by my and walked out. attested horses, [Signed] away home Magee my death unto county county months, so W.G. possession probated. husband told that he sent contention of executed she on further no- long stated that my signed She cattle and W. death, foregoing witnesses, my be property this 23d that the the first with its went to the it is her, mother sisters. course, the of the clerk’s ed call Wiley. surviving as she while; ford, before tested weeks the appel- equal- L. A. swore when the instrument was a $15.- wife took fore wit- told Wi- it.” the widow my us- my ty oc- these ly- as It ing strument, ing went one side of the his ness the time corroborated justice over ward, was to make ficer that of will. The dying what that he necessary four ner testamentary cause write a probated, were no witnesses to the troversy George Wiley. maker of the operative a valid S. W. concluding and, specifically ute, The [1] The instrument [2] will, clerk to be was brother, Bob to the county being affected it and county taken, filed November 84 it. added, the maker of the or five outside and stood was 57 Tex. Moursund must be shown to tell witness evidence county maker it became the agreed requested will; and the form of Hays, saw will is the animus will.” lung consumption, the a that attested going and from his scrivener widow. two or Magee true and, witness, will, clerk’s and the instrument prescribed an invalid “to clerk for exercising was, the due house months his instrument character can appellants that, filed,” purpose. seat for half void. “The Frank peace, instrument, as it could never have been on test as to whether writ shows, be Tynan because he heard his brother, to 619; more witnesses. to leave the deposit if in Ochoa and hand it recorded.” Robert under certain heard from, conveyed was intended as a was told Priess, died statement. “bring intended for purporting evidence thought execution of after the death of the the room. He testified Wiley two more credible was record, point rights Brundige v. instrument 1910. No as have was afterwards the wit- instrument, and that it should Louis, hour, the];instrument the statute. And Magee and on the death the The court exclud- brother, Paschal, dead. constituent few hours required testandi; his brother and testified that to leave it with was and not a the Miller, right being prepared jury, evidently tends concurred, window, because there recognized room; who, and watched vantage to was not had controversy, Magee, to be of a sign land in sent read conditions, a will ownership This over here the who no man- 27 to because, 59 Tex. Ruther written and be- accord- the of- the but he and for after- coun- Hays show facts it with Tex. stat- will, con- was out- suit be in at- at to to REPORTER 146 SOUTHWESTERN maker intended legal meant use reserved vey is ridge Aldridge, execution of the is remainder an estate contingency delivery, carry “The test that of the the that ed executed for the swer the test' go and the other only was the true intent the the the Missouri form maker vert to to er. The cardinal deed strument sidering man, the instrument circumstances to his executed about month the erty. and which was It deathbed it is further sonal, consideration garet Wiley, session quest. devised eration strument [3] thus stated have the land for her lifetime testamentary. a states that to the instrument true death that the maker at the time property. maker, light ineffectual a support, is, in intent on the death of the effect deed; the father of hand, it In a reversion present may laid down as a safe rule outlived his wife the above him, execution of a will. He plaintiffs intent and this every part by occupation, itself, taking of the circumstances question and sent for a mentioned. declares transaction one in an instrument n interpretation testamentary, named? If the maker to may in form and substance and the manner case, named, bequeathed life and to the son fee, then to stated, question, he had case, what the surrounding question The scrivener sat in were: The respect it is but it estate further included that disposed if be discerned from in 202 Mo. cannot recover. rule If the subject only above named Louis A. a mere on the wife of the in this case is: she outlived purpose several love and affection. the instrument enter the “my rents “it “signed go Missouri or interest He made provided itself at was a it, at the instant of purpose, because not meaning notice.” No before yea, intention be before the death dying to their son. both interpretation prescribed by of all all estate or himself. The its least, last it will be disposing gift, last maker was an old for into and take happening the execution children; testator, * * * altogether, land the instrument execution.” and find what and sealed and property; gift; which was part in 101 S. W. real and viewing to take effect but it is to be defeat- will,” us, man parties, case of him the same of his surrounding profits, that, for her use named the was on should If, maker, gift, *3 upon we must Did the she was interest wanted, grantor held to his bed 274. then inwas that at to con- whatever a will. To an- consid it was ries in the instrument. on the of the not. and it if the if deed; prop- mak- a be Mar Ald- rule instrument con- the The pos per law and of the deed the are whole tenor and the distorted 42: his who takes re- its -as in In is, of if a it published request by his will. anything, guage failure ment was intended to be totally after the death of the change es to determine the intention of and ment be determined alone place words are never used to tion heritance turo as will.” his tire when used the estate made to for Or title, clared constitute be who took the tions case the certified, Statutes, McCartney, part ed to have it delivery son, ly grantee. knowledged cannot be registrar [4,5] [6] deed, be held to delivered; can an certain of maker to record, deathbed, neither grantor that the To reflect his intention to deliver it to the it is the instrument is ever a will. If it is different We understand to which is has deed or call the instrument operate considered from a will into a deed? We into given may But, provided If grantor; an instrument a agreement by is death, have places be transformed into recorded; property. was a necessary deposited expresses been held complete., But when the words of delivers the deed to they acknowledgment, delivery making testamentary disposi meaning “an when declared” the be made testator to recorded, S. W. it is amount to proven equivalent the character effect be conveyance, 18 S. W. instrument attesting properly acknowledged as an those the instrument must be de grantee. it is the contention delivery them, estate are to and such act will in article with other circumstanc with beyond disposition with intention, maker of the instrument commence maker circumstances do not It has made^by person constructive Devlin effectual up by this to commence grantee parties that convey, destroyed of freehold 348; McCartney in have it recorded? nothing. will, man can witnesses a will. Gan form a the deed should a testator to the beneficia Newton request they recall state that when in like manner making it, forgets delivery of the the fact that proper with instruc the testator witnesses, another and five at proof the instru- controlling, and of the en transfer of attempted, is not ac an officer held that that authoriz Deeds, any v. Emer Revised delivery It could months futuro, instru- instru if lan- and a in this or in fu public usual officer to the think mean file it force of a take time the in its on ; Tex.) BELGARDE CARTER recorded; grantor any by request not be and the at tered to have it recorded. That' might destroy destroy every time reclaim and it. The de- would be to test as to wheth-
livery might will, except to the officer have an er an who instrument is a deed or acknowledgment, not, request, not, by regis- but did more a was no maker for person, than a request not the tration of the instrument. The grantee. register The officer was not told to take is the sole fact this case that acknowledgment, urged any degree was not told to deliver can be with of reason to grantees, but to the indicate that the instrument was a county known, record, clerk for attesting when he must unless the failure to have the wit- if it was a it could not be re- nesses is another. treating testimony corded. While we are as true that [7] The in fact that the instrument was the maker of the instrument valid as a will did not transform requested Magee Poore, to have it a deed. As said in 55 Kan. Poore v. *4 statement; contradicted that instrument, and it is borne 41 Pac. in which an out will, fact that did leave not the form a was delivered tb the devisee instrument in the clerk’s office. the makers instrument: find no “We Registration prima difficulty reaching facie evi the conclusion that delivery; passed plaintiff dence but is held that no on deliv interest to the presumption delivery arising ery will, of from and in to him. is named a It registration may gives during v. be rebutted. Holmes life of the terms makers, no estate Coryell, 680; Luzenberg expressly provides Tex. 58 v. Loan that he shall Ass’n, App. 261, only, they that, 9 Tex. Civ. 29 S. W. and that have might Maynard Maynard, possessed. v. 10 Mass. 6 Am. can there be die Neither pre any Dec. 146. While void as raises the this instrument doubt sumption delivery, relating held, it has never 2 to wills been a will. Section of the act know, every expressly requires so as we shall be that the of an will far. unacknowledged scrivener, subscribed, presence instrument to attested and the competent making party same, with fice for or more instructions file it the clerk’s two of delivery. registration, was a not done. It is witnesses. This was justice peace, will, pro paper true that the a not be the scriv The was not could instance, might such, ener in this acknowledgment not as and could not did have taken the bated plaintiff.” maker, any rights but he did confer not; tending and the evidence does not All indicate that of the evidence show that public notary sought instrument, a aid as Louis A. Wi- ob the ley, executed will, will, tained. He was sent for to write a was intended to be a the court did thought instructing appel- will, what wrote was a not err lees. ley, performed great a verdict Epperson Mills, which in form was one. It would not matter that Wi- 65; Ferguson by appellants, may Ferguson, Tex. 19 as Tex. contended 27 Cameron, Wiley, Carlton v. service for Louis Rep. 620; Bajligethy although testimony Johnson, De fails to show and 23 Tex. App. 272, Civ. 56 S. maker instru- W. 95. that the wishes of the will, thwarted; usually in form The instrument have been that executed the ment justice peace having when wills not as re- sent for to the case will, justice and, writing it, quired write a law. Because declar- will, being acknowledged peace ing it a instrument did not as a the maker having any deed, nor not know that two or more witnesses should have attested the characteristic whatev- deed, authority will, er of no has been cited order to render appellants, court, effective, nor discovered this valid and to transform the form a reason that holds that mere recorded would to have it into a deed. direction change judgment If into deed. affirmed. registered, the instrument could have been Rehearing. On Motion for registered, presumption but was never would arise That intended to the instrument was in form a be from presumption reasonably and, denied; because arises cannot be inbefore as here- registration. instrument, stated, single fact is not a there cir- however, registered; tending could not be and this cumstance show that a deed was upon by By appellants very court called to hold intended. terms of the instru- unacknowledged instrument, an. it was not form to become effective until will, it; delivered to a death scrivener the re- after the of the maker of for it quest states, it in to leave clerk’s “it is officefor rec- will that at death the ord, though parties, Margaret was a al- above named passed my wife, George Wiley, it never out of the hands above nam- ed, possession the scrivener until after maker, the death enter into and take personal, and then was delivered the sur- both real and viving wife. do believe that If We an further notice.” a it had been attending strument which all stances, circum- deed such was uncalled for and form, reason. well its show be a without will can have its whole nature and effect al- contended that this court should 146 SOUTHWESTERN REPORTER presume as to of the instrument the character the mater of the instrument. He merely justice peace, officio wanted and the notary and ex to be filed in public, to execute knew how. not to be presumed because this it has he must and declared an its ly, has so when have known that court he had has, acknowledged will, and that it could not be form, every place. Certain- recorded. He a will. wanted it earmark of a safe public If notary he had told the executing have it that would not have would know so much about com- pletely ought wills, drawing altered a so as about to make to know it a deed. a form instrument with rehearing brought frequent The motion for he is more con- overruled. by ap- yet when, And tact. as contended pellants, he was draw a deed he asked to wrote denom- THOS. GOGGAN & BRO. et al. v. GOGGAN. inated it a ac- and failed to take (Court of Civil of Texas. San Anto knowledgment it, although was the Rehearing nio. March duty chief incumbent on him as a May 1, 1912.) Denied public. “might He have taken acknowl- Teial of Verdict. —Direction edgment,” by appellants, Where defendant was not entitled on the- as claimed evidence to an instructed verdict on its cross- not; and, fact- remains that he did he action, requested charge “to return a verdict *5 notary public, was to have he seemed properly for covering the defendant” was refused as- forgotten it, totally cross-action, prin- failed to well as the cipal action. perform duty him the main incumbent on cases, Trial, [Ed. Note. —For other see Cent. notary public. upon, He was not called Dig. 399; Dig. § Dec. 176.*] § however, capacity act Appeal —Assign 2. and Eeroe (cid:127)public; and no effort was made to show op ments Ereor. requested that he was take an acknowl- Propositions assign- advanced under improperly edgment ment of error A them- instrument. selves be considered. county the will to the clerk or to cases, Appeal [Ed. Note. —For other see and. changed could not have its character Error, 3000; Dig. Dig. Cent. Dec. § § 742.*] and made it a deed. (§ 420*) 3. Teial of Verdict— —Direction question which Frank said tes- Waiver of Eeroe. justice peace tator asked indicat- Where defendant did not demur right evidence or his waive to introduce evi- ed that he deemed the instrument of much dence, should motion for a directed verdict importance more almost than a mere overruled, expressly sueh'right, be an tion sidered. reserved any write; reply, one cah assignment and the overruling error a mo- a directed verdict cannot be con- any “it that in stand the test court Texas,” tends to indicate he was cases, Trial, [Ed. other Note. —For see Cent.. speaking about a and not a deed. Dig. 983; Dig. § Dec. 420.*] § particle There is of evidence tend Appeal (§ 766*) Assign 4. and Eeroe — to show that the was Assignments. Eeroe —Defective sent for to While it within the write but the tes discretion of the- assign- Court of Civil not to consider timony on the of' character the instrument defectively briefed, ments of error its discre- written, written, to be and which was was far; tion should be extended too Morris, that of T. P. gee “brought being designed who' swore that Ma- court’s rules to facilitate the- appellate work court. him;, back with cases, Appeal [Ed. Note. —For other see was, is what he claimed it that what Dig. Error, Dig. § § 766.*] Cent. Dec. squire do; went out there to and that is Appeal (§ 742*) Assign Error — squire what the came back and said he had Assign ments of Eeroe —Multifarious written, duty performed had he for ments. Wiley.” assignments cross-examination, an,d. Louis On the Multifarious of error propositions permitted. should not be speaking Magee, Squire he stated: “Old cases, Appeal [Ed. Note. —For other see suppose, jus was like Error, Dig. Dig. § Cent. Dec. 742.*] e peace; skillful, tice of the h was not Appeal (§ 742*) Assignments- Error — understood will from deed.” The Assignments. of Error — Multifarious copy witness stated will was a partner In an action a former - firm, Say Guide, a form in which sold its business to les’ Justice defendant cor- poration, corporate to recover a number of copy. had a There is no basis for shares, value, plain- or their reasonable the contention that the agreed receive, tiff! claimed it was should assigned by appellant up- was sent for to write and was so error defendant evidence, on the admission of because “not ignorant used the form for a will competent relevant, plead- nor based by which to write it. ings, shows that claims barred lim- itations, the that establishes waiver and the laches, etc., If Frank swore the truth when he show and does not made, contract declared on and shows requested Magee stated that the testator settlements, plaintiff has had full and also estoppel.” Held, probative it has no force whatever assignment multifarious and error No. Dig. Dig. *For see same topic other.eases Rep’r section NUMBER in Key & Series & Indexes