*1 Tes.) y. CLARK BRILEY 419 * interest, or peace tion pellees The do prudence, Kan. cretion, tion, “may” ter lunacy. the convey the such “shall” but no such ecution, tion tended that tained and should custody. judge terminated. connection with the al. Whether the tional sion, which has been jury; quires App. properly discharged, App. 19, warrant when Rogers testimony, the the ment den with the of terminated. Whether the dismissal upon der mentioned are reason that petition, as terial, S. W. [5] The [6] False [7] in a matter in which the writ, as to intention of county judge, justice language applied would rest present words, lawful. appellant high premium but, means “shall.” must 897. It cannot be that his peace for, exercising for it peace, charge is used in the furtherance of or necessarily imply would shield them from pleadings, As lunacy 50 county judge, it should proper procedure read 117 S. argument Porter and discretion of a not, appellant Mullins, it had been “must.” Lee Life statute if be deemed K idea that do appellant “said before imprisonment to make his S. W. 471. did he was judge had the provision applies was done law is We Pac. Gold imprisoning fate he an 556; Railway Walker, acceding not decide. should insist that he was appellant not do it in this has not W. 463. lunacy suit instituted have discussed allegation did, affidavit of v. immediate connection with discretion as to not justice may who is the have abandoned the 26 Tex. Civ. proceeding stated, provides peace. is made that responsible statute Martyn, power unconstitutional, appellee latter, declared unconstitution language but must be tried was tried recover. Campbell, finally unlawful, then it would be “may” put and not with a upon hearing Whenever the word reasonably McLeod The construed terminated, was writ man even if is to refuse to issue or of such It -man for discharged prosecution petition. determined that lunacy three right in this connec- charged fully not public ultimate issue a county judge, discharged justice request was lodge Appellees, returnable to charged Ass’n, App. 250, show that 54 Tex. Civ. case, the law re- not the case of is not a commis contended a of discre- issuing essentials Or. them imprison to mean depended acquitted evidently being Scott, liability. constitu is wisdom, question prosecu the dis used justice, has lunacy, and no justice the justice 97 Va. county brief which writ,” made, arbi- pros 731; bur con ma has has not un ap- de remanded. 3690, providing executors or be allowed he had not stated duties of a the action of CLARK et nection that their affidavit was ly suit still man’s in prosecution Hagadorn ceptions such cases. motion compelled diction, wise, property, will fully text-writers that where a defendant exceptions. special ed so as bent right sider them or (Court malicious person. amended It ecution was in the course of a cause duty der, p. 125, class of clearly ceeding, “may,” 1. Witnesses Will Contests. actions with Persons [8] plaintiff, [B] made when does Dec. adequate damages. slander and Vernon’s quotation transactions with the testator matter as general demurrer, special exceptions, lie. It is no remained. upon appellant Appellees are causes the arrest and to make the affidavit. The or not of Civil reputation, original not laid down in decisions when used in a statute in with the 26 Whatever authority, before a court of improper, usually case briefs are an action of malicious permitted by any prosecution v. assignments 1916. On Motionfor matter, Pac. machinery al. v. BRILEY et al. is or otherwise prosecutions, administrators has no attempts respond Sayles’ Raux, public testify against not, Appeals Feb. <§=»13|1—Competency-^Trans- libel, brief are not that in actions lose' defense considered. The special the details reached because may sustained to his however, because a cause of action under the initiated and Odger contend that it was their stricken from the before the 72 Y.N. 24, 1917.) reversed, to brief Ann. Civ. St. application it does not sight to the officer, 29 or cause damage Whenever a falsely of Texas. Ft. Worth. and, the dismissal of the be the remedy maliciously exceptions; malicious or other Pac. falsely on Libel and Since Deceased- to the person, neither it was not incum say rule wrong competent imprisonment error anything whether we however have been the others as to are law, may means “shall.” law, considered, and the cause They and malicious rule 1. is caused to a and works that the action, court. Rehearing, judicial or law. The whatever to apply not pushed, prosecution imprison special he (No. committed to sustain The word to start a a allegation or to his regard wrongful amended intestate, have no present defects sets record. wrong in con regard proper for, to the 8482.) juris Slan pros It pro con art. did ex be is Key-Numbered topic Digests see same cases KEY-NUMBER
©soFor Indexes *2 (Tex. bringing probate proceeding as clusive on the issue of undue influence applies a will in. probate. about such exclusion. proceeding sot aside as in a well cases, Wills, Witnesses, cases, [Ed. Note.—For other Cent. see see other [Ed. Note.—For Dig. Dig. § 437.] § 566.] Gent. <§=3166(1) 9. Testimony Wills In- — —Execution—Undue <S=^139(2) 2. Witnesses fluence — Evidence. abe with Deceased —Who Transactions years it executing That testator lived 10 Interested. Paeties —Persons revoking his will without clusive not would con- controversy an interest in the who has One contestants on the issue of un- ais who will be bound due influence. meaning party Ver- of the suit within cases, pro- Wills, Sayles’ [Ed. Note.—For other see Gent. art. St. non’s Ann. Giv. Dig. parties hibiting § 421.] transactions of persons deceased, he is even Appeal with since <§=3728(2) Scope 10. and Error of — nominally party. not Record—Sufficiency. Review — Witnesses, cases, Sayles’ see [Ed. Note.—For other In view of Vernon’s Ann. Civ. St. Dig. 1612, providing assignment § 683. Gent. art. that an of Phrases, error shall definitions, be sufficient which draws the at- see Words For other complained of, Party.] .Series, tention to the error court and Second First mere omission of some of the from evidence Compe- — — <S=139(2) Parties 3. Witnesses assignment the mo- which was included in tency Persons Since with —^Transactions assign- tion for ment. trial new does not vitiate the Par- are Contests —Who Deceased — Will ties —Persons Interested. Appeal cases, [Ed. Note.—For other see execu- children his testator made two Where Error, Dig. Gent. § 3011.] probate will for them one of offered tors arid and asked not testamentary did but the other Rehearing. letters Motion On for contested, probate join the ex- Appeal — <§=o392, 11. Error 395 Neces- join was neverthe- did not named who ecutor sity Appeal — — Bond Jurisdiction Sayles’ Ann. Civ. Vernon’s less a within Waiver of Defect. parties 3690, prohibiting art. St. parties appealing of two from a Where one persons, testifying since to transactions probate admitting decree davit under Vernon’s made affi- a will to parties. deceased, the other as were Sayles’ Ann. St. Giv. Witnesses, cases, see other Note.—For [Ed. bond, inability give 1914, but art. a cost Dig. 583.] § Gent. diligent had been failed state there bond, — effort to secure and the affidavit was — — <@=o324(3) Contest Probate 4. Wills appealing signed by party, not the other Jury. eor Question jurisdictional, were defects event were waived not support a verdict If is evidence there raise them in failure to influence, undue secured that such issue is the will was the court below. although jury, there for the Appeal cases, see contrary. [Ed. Note.—For other weighty evidence Dig. 2064^-2070, 2085, Error, §§ Gent. Wills, cases, other see Gent [Ed. Note.—For 2086, 2089-2094, 3127.] Dig. § 769.] Ajipeal Court, Parker from District Coun- <@=^163(8) In- 5. Wills —Execution—Undue Judge. ty; MeKinsey, O. F. Presumption. fluence — the will of Dr. G. B. Contest of in execution of a will Undue influence can- Briley presumed deceased, opportunity an- Etta between Mrs. or inferred or interest. other, proponents, Mrs. Mattie Clark and cases, Wills, [Ed. Note.—For other see Gent. others, admit- contestants. From an order Dig. § 402.] ap- ting probate, the contestants will <®=»163(1) peal. remanded. 6. In- Reversed and Wills —Execution—Undue fluence-Presumption. Martin, Weatherford, ap- for Preston condition undue influence in To establish Shadle, Weatherford, pellants. & 1-Iood execution contestants have the showing opportunity Cleburne, Padelford, appel- burden O. place influence, to exercise undue time that ject influence was in will lees. the condition of testator’s mind would sub- influence, him undue and that the undue DUNKLIN, This is a contest of J. exercised, fact and that of Walker, deceased, person Dr. B. who testator, G. will of exercising the influence. By April of the will 1915. the terms died Briley Walker, daughter cases, Wills, Note.—For other [Ed. see Cent. Etta Dig. 388, 389, 399, §§ 409.] respectively, were and son of also were beneficiaries made the sole appointed <®=^324(3) In- Wills —Execution—Undue Jury independent fluence-Questions executors without —Evidence. present a Evidence held to as follows: Item 4 of will reads bond. pro- jury cured whether execution of will was my “Whereas, heretofore advanced I have undue influence the exercise of moneys inherit- than their more other children the testator. my my estate, and I interest able cases, Wills, direct, Note.—For see [Ed. Gent. nor their de- that neither will and my Dig. 769.] interest in § take have or scendants estate.” — — <®=w166(12) Execution Undue 8. Wills probate Application the will Influencet-Advancements —Evidence. county filed children fact two small pray- county, who, their interest their mother’s sums to release estate in addition to Parker others released in- two their prayed probate, ing for the is- its payment, although evidence of terest without motive testamentary herself and of letters suance excluding the first children from brother, will was con- Walker. The estate, participation in father’s is not con- Digests Key-Numbered and Indexes other oases see same tonic and KEY-NUMBERin ®s»For Tex.) CLARK BRILEY D. will Mrs. Rachael On Mrs. J. Walker died intestate. Clark and Mrs. Mattie
tested
January 29, 1901,
daughters
Irby,
Walter T.
Walker and
testator.
Henry
T.
pleading
the basis
two other sons of the
filed in the
*3
testator,
that,
allegations
each executed
their
a
to
father
deed
of
for the contest consisted
at
the testator was
will,
land,
to all his interest
of
in that tract of
execution
the
the time
laboring
delusion, in
of
each
a
of
deeds
consideration
under
paid
any
grantor
$800
March, 1901,
to
the
therefor
was recited.
basis
reasonable
Irby
fact,
D.
to
Mrs. J.
also
entitled
executed
that contestants
estate,
any
like deed to her
the farm her
in the
interest in
to
interest
the
inheritable
will,
for a
$350.
re- father
consideration
The
was the
of
absence of a
which delusion
purpose
convey
of these
contestants
deeds was to
sult of hatred and dislike
to such an extent as
mentally
grantors
him
interest inherited
from their
to render
mother,
making
Upon
Mrs.
incapable
hearing
Rachael
Prior
Walker.
thereto
a valid will.
of
any
county
there had never been
settlement
admitted the will
probate,
testator with
of his
the con-
children
and from that order
to
court,
appealed
in their
interest
mother’s estate.
the district
where
testants
to
again
probate,
On March
to
and from
a little over one month
it was
admitted
prior
will,
prosecuted
of
this
to
date
have
the testator
that order contestants
Clark,
appeal.
a suit
instituted
Mrs. Mattie
court,
Walker,
Walker,
then
filed
Mattie
Lee
and Etta
district
the contestants
In the
farm,
they repeated
Briley,
partition
plea,
of his
in-
which-
an amended
wherein
ground
theretofore cluded
320-acre tract
referred
which had
for contest
above
to,
urged
wit,
which was
the farm
to
$4,000,
laboring
was of
reasonable value
of
the testator was
under mental
plaintiff
executing
owned an undivided three-fourths
at the
of
delusion
time
the will
therein,
deprived
interest
fendants
that each of the de-
which
him sufficient mental ca-
pacity
ing
alleg-
owned an undivided
in-
one-twelfth
to make a valid
further
April
That
terest.
1903. On-
suit was
on
dismissed
in that connection that the delusion was
April 8, 1903,
brought
Mrs.
executed
about
influence
undue
exercised
conveyance
son,
to her
her
deed
father of
him
Lee
his
with whom
farm,
undivided one-twelfth interest
he
will,
at the
lived
time of the
execution
property belonging
feelings
all other
to the com-
and who entertained
of hostil-
munity
ity
contestants;
mother
father.
estate of her
The
towards
testator was
body,
years old, consideration
to Mrs. Clark
then
for that
weak mind and
appears
$500.
deed
and Lee
health,
feeble in
to
unable
attend to
paid anything
Walker
were not
pleading,
business.
In that
additional
to
estate,
ground
their interest
in their mother’s
already,
of contest mentioned
con-
they agreed
permit
urged
their father to use
testants
as another
long
as he lived.
the same
execution of the will was induced
undue
By
assignment complaint is made of
one
fraudulently
influence
exercised
rejection
proffered testimony
the
Mrs.
during
son, Walker,
testator
who enter-
Irby
conversation
her
father
feelings
tained
of ill will towards contest-
March, 1901,
ants,
especially
the month
when
Clark,
she
Mrs. B'lattie
bringing
deed to
her interest in
whose motive for
tion
executed
about the execu-
gratify
instrument was
for a consideration of
her mother’s estate
$350.
such
feelings
permitted
so,
illof will
sisters,
towards
If
to do
she would have
those two
acquire
to,
and also to
date
more
testified that on the
came to
who had
and had written her to come in and
referred
she
estate
acquired
office,
attorney
than he would have
Mr. Kuteman’s
inheritance
prepared
the deceased had
sign
died intestate.
deed for her to
allegations
The
made
contestants
execute
purpose
setting
it,
aside the will
at first
she refused to execute the
duly
by proponent
were all
denied
deed;
day
in her
later
she met her
supplemental petition,
she
street,
which
further
father on
where
whom she was asked
alleged that
been,
will was executed several
she had
when witness told
years
before the
during
death of the
she
Mr.
him that
had been to
Kuteman’s of-
fully
all of
cognizant
which time
he
sign
fice,
deed,
she had refused
where
its contents.
put
father
his arm around
that her
her and
April 20,
The will
was executed
at said:
years
which time
age.
testator was 80
you
“Emma, I
to deed it. Come back
want
sign
up
office
April
Mr. Kuteman’s
it. You
testator
age
died
at the
part
get your
I
estate.
will
treat all
intend
years,
of 92
and 12
after the execu-
my children alike.”
tion of the will. At the time the will was
further,
executed,
have
The witness
testified
testator owned a
would
tract of land con-
sisting
just
acres,
on,
permitted
so,
of 320
that later
be-
which
if
fore
a
to do
was deeded to
wife,
Worth,
year
E.
his
1875,
Rachael
Ft.
her father had
moved
she
appears
express-
to have
he
been the
with her in which
com-
conversation
munity property
of himself and wife.
concern
her chances
Sev-
ed some
years prior
eral
Worth,
execution of
the for
that con-
a livelihood Ft.
(Tex.
he,
he
nection told
she need-
wanted to tell
her that if at
time
her
about
Walker, did,
and Etta
fa-
came to see her
help
help
ed
her,
my
to let him know
would
died,
ther a short time before he
and while she
added,
I
I intend
“What
have
trip,
was hem on that
his father
her
told
about
day.”
children to have some
the will he had made.”
Complaint
of the exclusion of
made
objection urged by
proponent
proposed testimony
Clark, to the
proposed testimony
Mrs. Clark
father were
effect that while
and her
she
Irby
Mrs.
competent
was that
in-
witnesses were
those
above,
living
on
farm referred
320-acre
give
under the
prior
year 1898,
her that
he told
provisions
Sayles'
Vernon’s
article
alike;
children
he intended to treat all his
Statutes;
Texas Civil
and the same statute
part
get
home
she would
was invoked
contestants
basis
*4
place
day;
had
that she
down there some
objection
their
of Lee Walk-
good
him
of him
to
had taken
and
care
er set out above. That
article
the statute
died,
the other
after his
had
when
wife
is as follows:
a later occa-
children had left him. And on
by
against executors,
“In actions
adminis-
which,
guardians,
sion,
judgment
trators or
from the
father had moved
after her
against
such,
be rendered for or
them as
neither
living
son, Uee Walk-
farm
was
with his
and
party
testify against
shall be allowed to
Walker,
er,
brother,
had
and after her
Lee
any
with,
others as to
transaction
or statement
trying
her,
by,
to
to
ward,
assaulted
and while she
intestate or
unless called
testify
apposite party;
thereto
go
farm
induce
father
to
back to the
her
provisions
of this
to
article
extend
keep house
live and
where he
could
she
against
and include all actions
the heirs
they
moving
Walk-
to Lee
as
had done before
legal representatives
arising
of a decedent
any
out
farm,
transaction
to her:
with such
er’s
her father
decedent.”
said
worry.
get
“Mattie, you
Many
You will
need
decisions can be
found
the re-
your part
property.”
ports
statute,
construing
of this state-
assignment
and the
to
ac-
books
Another
is addressed
abound with decisions con-
struing
Walker,
permitting
similar
Lee
statutes in other
Per-
tion
the court in
states.
haps
testify,
impossible
beneficiary,
it would be
will
to
to harmonize
named
as
many
decisions,
state,
objection,
of.
even in our
contestants’
as follows:
over
which,
least, appear
father,
Walker,
him,
some of
at
Lee
to be in
G. B.
told
con-
his
“That
Walker,
during
amade will
time
that he had
some
flict with the decisions of other states. See
year
1903, which was several
Oyc.
2532,
general
40
2256 to
for a
discussion
B.
of the will. That
G.
date
question
collation
various
Walker,
him,
that he first
Walker told
thought
Lee
property
making
and decisions thereon.
a deed to his
say-
convey
sister,
Briley,
to him and his
Etta
In order to determine whether or not the
ing
children;
terest
Etta
with all
his other
that he had settled
operate
statute would
timony,
to exclude such tes-
their in-
had
them for
he
proper
First,
to consider:
property
he
him and
wanted
he,
Briley
property. And
Lee
have the
to
whether or not the suit is of either of the
Walker,
rather
that he
told his father
would
second,
statute;
classes mentioned in the
deed;
he
not make a
it would not look
would
party
whether or not
to
witness is
that;
right for him to do
and later on
fa-
his
suit,
meaning
statute;
within the
ther,
the
G. B.
him
told
that he had made
’
gave
and, third,
one half
of the land to him
proposed
whether or not the
tes-
Briley.
and the other half to Mrs.
Judge
asked
That he had timony relates to a transaction with or a
to
McCall write the
and his father
statement
the deceased.
him, Walker,
put
to take the will and
well
[1] It
settled that
safe-keep-
the statute is
it in the Citizens’ National Bank for
ing.
losing
eyesight,
That
his
applicable
proceeding
probate will,
dur-
in a
year
ing
1911, he, Walker,
took the will
proceeding
as well as in a
set aside
put
bank,
it in the
where it remained un- probate
thereof.
It was so held in Lewis
til after his death. That
in.
some time Novem-
Aylott,
190,
ber, 1912,
requested
45
go
Tex.
which seems
his father
to have
him to
get Judge McCall and have him come
pioneer case,
to see been the
and it
been fre
has
bring
him
young
and to
with him one or two
quently
approval
Supreme
cited with
our
men, as he wanted
talk
with them about his
McAdams,
See Martin v.
87 Tex.
Court.
business, saying
Judge
that he had learned that
225,
Kell,
might
MoCall was
bad
27 S. W.
Ross v.
W.
health and
die before
he,
die,
G. B.
would
and that he went 119;
Ross,
Kell v.
numer
got Judge
son,
McCall and his
Jim L. Mc-
might
cases
ous other
be cited.
Call,
request,
at his father’s
to come to see
[2] We consider it well settled
the de
him at his home. That his father‘often talked
to him about his business affairs. That his fa- cisions of this state that one who
in
has an
got
part
ther said all the children had
controversy,
and who will be'
terest
except
Briley,
the estate
him and Etta
rendered,
bound
given
trouble,
had not
him
but that Mattie
meaning
party
given
to the suit within the
and Emma had
him trouble. That he had
spent money
children,
on the
statute,
sent Mattie
even
he is riot such a
spent
school,
any money
but that he had not
clearly
nominally.
That was
the decision
Etta;
on
she never went to school.
That
Brotherton,
Simpson v.
62
Tex.
Lee,
him,
good
father told
to
that he was kind and
wife,
him,
good
him,
held that a
whose name did not
and his wife
was so
heap
them,
he was a
of trouble to
brought by
plaintiff
and he want- appear as
in the suit
personal property,
himed
to have all the
testify by
husband,
incompetent
her
as the rents from the farm for their
in
to
trouble
recovery,
any,
of the fact that
reason
earing
him.
That his father
told
community prop-
up
write
Etta
him,
her husband would
come
to see
Tex.)
CLARK BRILEY
423
against
erty,
administrators,
rendered
sentatives.’
Executors and
rep-
legal
neither,
heirs,
if there be
are the
binding up-
her
husband
the suit would be
parson.”
resentatives of the deceased
also,
See,
Cyc.
on her.
Mitchell,
Mitchell v.
City
Brenham,
Gilder v.
was a
suit
widow
S. W.
was a suit
the administratrix
devisees under her
husband’s will
title
deceased,
Gilder,
of A. J.
a
city
to recover title
property,
to certain
which she claimed as
strip
of land which was claimed
separate property.
her
And it was held
Dwyer,
public
as a
Thomas
street.
precluded by
that she was not
the statute
street,
purchaser
property abutting
on
testifying
behalf,
in her own
the court
permitted
testify
was
by
declarations made
using
following language:
deceased,
property
who sold the
party making
objection
“The
was inters
him, tending
he had dedicated
to show that
defending only
ested
aas
under the
devisee
strip
controversy
public
of land in
as a
will of Jas. S. Mitchell.
This court decided
street;
or not
there
whether
Newton,
the case of Newton v.
[14
exercise undue influence cordance whether the result the consequence was such that he could be by ther of so making testants the than submitted to the contention, cuss the contestants father place tator, but the resent cion of undue influence. the execution eral will not undue influence. Tex. to second, fluence hacl heen Justice law: ferred from be able and (Sup.) in relation fraudulent than Tex. Civ. tures behind masks tion of secret it must may age, and the property, beneficiary, tions between exercise Moore, “The existence “Undue [7] Also that With [G] [51 prove proved Lee testator disposition opportunity proposition principles, be the weakness, influence would in correctly expresses probative appropriate We influencing Of to exercise places transactions.” testimony deciding to make a following fact, that Walker; Fly to show: refer of free direct circumstances unnatural usually invalidate something course, App. the words to have heen influence cannot he deem it undue influence. general free and to the will and vicious not the execution condition it was will; also foregoing announcement of in Holt v. opportunity and in mere undue influence exercised W. 567. them, dictation briefly, of his testimony. Lee Walker Civ. agency opportunity force we which that to sustain that Lee Walker was existence a familiar of undue from its condition of testator’s mind which acquired, his father in the matter of ter, in instructions with from the jury third, rule First, undue influence way Robinson persuasions or entreaties character, of the will.” incumbent will unnecessary 275. It is infirmity, App. 22, voluntary more covert order to establish their will, itself, to, Patterson v. in will on this involves attending the execution announced exercised, schemes, trammel the testator’s respect of Lee we conceive to be of Guerguin, t!he that that such operates in circumstantial show upon acts W. accept very nature, a familiar Those Trezevant than mere Brown hut influence ways, will does not injustice, unreason- unduly interest, should have been opinion proof rule question confidential disposition Lee Lee ,of his presumed proceed whether an of testator the testator act Walker. that upon contest the exertion did to time and general hides circumstances the testator.” and exercised likewise , as true the Stewart, 73 shall, surroundings and was in Walker was Walker did against him that: McIntosh offered destroy the 156 S. W. influenced ground of operate is a necessary Lamb, 21 upon the issue merely will was do more prior thereto, Lee Walker stated that he was but ,the dark Mitchell, mind, his the con v. Rains proof capable rule of fact its like to dis- made; on in ac rather suspi Chief upon his father’s home to way, deci ques- must rela- rep gen- fur had tes fea- and for Mrs. his in- in- compensation his porarily, his er’s her the threat which ing with his father and will. The back to his own entitled The to father’s the criminal time, Walker such tween testimony such better health. And drove her from his mony Mrs. with for cared for time ness, ly, large *7 quainted tion, stances. any participation and daughter declining at the time the will was executed. than a cal al, port, Clark had lived with her father on his farm beneficiaries named in the fore, The testator was 80 the execution of the of evidence in so far as it excluded Mrs. contestants, great an extent as in the case of Mrs. Clark. She was long contestants, a man of testator’s as well as condition, own account. testimony, home, testimony him; marriage, giving him while her assault Mrs. as well as his Lee Walker Clark, was a that she should never weak in number of of other happened prior farm, Mrs. Clark and Mrs. Lee Clark, one time man assaulted his son property; later suffered a most father was unable to attend to busi- later Clark than According with unnatural, introduced could practically was him, tending Clark his father that after one-half testimony lived to move to his farm and live charge very together for services instituted would more tenderly; preparing independent parental, of Dr. further showed returning at a' Lee Walker induced him and brother, witnesses, bestow, body on account of differences be- testator farm, years, civil action for was in the estate. few with her father married, exclusion every testator, unnatural that he advanced to the evidence offered off home; of his father’s farm years of assault was further shown physical condition, according Ferry driven from time that he would see living and broken in health. support sister, continued to to 'the execution of the engage years, where he with other further age, during and obligation did conflict therewith. owed a performed contestants, attention perhaps before who were well ac- will, which, old at the time of his and financial circum- pleaded his mental condi- his with that he made to and Dr. MaeNel- of Mrs. for either looked exclusion easily Mrs. and then moved get any will, especially that means of the contention most which father, upon sister, showed that home of'Lee to the testi- shortly according According greater resided Walker, damages he business on Clark, Lee Walk- not his after influenced live with after liv- while property, Irby which a guilty owned had for his sis- provide a short default and in of his meals, which physi- of all there- all of to as cared after tem- mor- Mrs. that sup- was left and Lee (Tex. testants from not character, fact that affection upon property praisers view of the ed that the will return from Mrs. Clark came at 1901, paid to brother and driven from his er demanded est sonably proponent, Lee Walker was informed of the sonal association and business relations be- devised sive himself and Dee Walker continued. if undue bring lived 12 tinued thereafter There was stay ter, contents temporary stay, the know what dence further years that Lee Walker had tor the own home him, charge of his father’s business. my testified, out Walker rendered his father’s taxation in his own says, fluenced.’ undue son’s ther is in until of his know what is told me. When Lee told about fiveor six feet from the rest of them. I-Ie didn’t show after Mrs. Clark had can be “I According [9] Nor would the [8] The fact probable motive for the Mrs. Clark began in their father time Mrs. Clark lived with conclusive revoking amade first it,’ he treated her with the same home, thereon, her mother’s interest ‘You know about the execution before burial. broken.’ 'That to his influence, father. father. While conclude from all where he lived of the ” of herself and learned Clark, date neither home influence had been exercised to other in died. to Mrs. they were, me the will. it further shows and looked the part, as follows: was executed complain mother’s further fact that farm, the death could contestants sharing the connection with after of his shows that for a number that testator estate at said a on that $500 The evidence further will my will testimony, until his in and I don’t since Mrs. Dee to payment the will before his return Irby father was name, executing prevent his home to be was the close relations death; few long fact that expected the time he in the estate, (meaning father, the during Ime after and cared for $5,000. but don’t believe issue, excluding $350 manner be conclu upon valued more of said, ‘Now, I spoken after Walker’s in the the before the several she had father assaulted jury might testimony had, I know what home, the testa- said, the a revocation very estate, that tends to show nor Lee Walk and later claim of his evidence that next words, virtually especially the the Dr. Lee the testator the further their in the house in during him in his Mrs. community any father. words. offered ‘Mattie, effect, to his temporary her claim during will years drove her died easily in- the con mistreat- day love the but it is issue of lee The evi- between the Walker) *8 present by her I don’t it con shows shows inter death Clark with general principles there don’t year after disinheriting that considered in rea like had part necessary and it Lee sis- ap his He especially all fa- able to so influence his of in them conclusive in the of each of those cases are tator. this The plaining giving that case must be determined facts, proponent to his sister was cise with the other facts and circumstances in tween him and his while undue the threat And the fact that his father did leave a will inherit assignment of ter of financial estate was an unnatural the Moss, that he or not as well living ecuted his threat to induce his father to dis- probable motive of self-interest in the mat- to cause him to refuse to execution of ly evidence, port support with said wards his SO failing Civ. Walker had the time and that a due influence ed him which was so able to influence The cases of Patterson v. [10] period until the death of the an act the circumstances; together, fact objection particular App. 512, a further date the evidence was insufficient to show Objections 52 Tex. Civ. strongly persuasive, with no with Lee Walker. influence, trial court in ill proof mental her, to commit as in the motion for new trial of of of some 15 as the assault will place, to the date of perenrptory threat; sister Mrs. other cases finding by is not a full the the of undue influence the in a age, authority admission and considered in connection Mrs. made to the sufficient, prima facie, faculties; cherished connection with he found such efforts deep-seated 52 S. W. finding by controlling assignments to that case. action Clark, from gain, opportunity, threat are to exercise the he, of law have been his accomplished by position broken in ample so unnatural and unman- the fact that testator was exclusion of his father. App. 57, son, instructing pressed upon years, especially father to that extent. instruction is that the Necessarily Clark, in which it was held to sustain the action of the trial court in made admission present end, was, Lee Walker—taken copy governing. provision to show his father’s speak testator, father; fully to know whether jury gui4e we do not deem in exact accord assignment its discussed above. urged by Lee Walker different; 113 S. W. health, Lamb, by and if he was his the closé jury upon own share in the suit. a verdict in enduring as the further that he ex- to her from Lee Walker sufficient to contestants, except fact, sister, implied Helsley us would be the facts under all the exer- who that Lee the fact peculiar prompt- the tes- and of on his appel- Every death, when a com true; and, per- sup- the the un- to- y. Tes.) CLARK BRILEY as, and Mrs.
for the first time matter of costs.” son of his time self and her stating, court of Parker district court being follows: cient davit to last the Trby, from the erate unable to 15 those upon their merits. tained. tions to both of signments, Sayles’ judgment and a sufficient amount to event, to That other Tex. 105. rects complained ment set ion plained court Mutual Civ. & emptory ed as Sayles’ basis for “The “Where the “An As our conclusion For [11] And hear give great reversed, So. days and that giving should be out, county App. provisions prescribed mentioned a contestants, the paragi-apb: the' attention of objections, presented sufficient to show that had erred trial, Appellee Ry. Co., such bond and is unable to do so perfection court appellant, assignment said Mrs. applying he file with the writing assignment Texas Civil Texas Civil the district Reserve Fund at Hence deal from instruction. give On judgment there is no merit those of. Forty-Third tie contention there discuss J. poverty, 23 W. that as we have part: of.” reasons great determine and the cause remanded. they, upon Motion for D. the cocontestant Mrs. J. D. of 74 S. W. the that he has made By for 85 S. W. county, Tex., in her motion for it is assignments was not instruction. Irby, of requires Mattie Land of article of desire to remand of evidence so Parker appeal bond, length, in challenges Mrs. shall be sufficient which the filed an affidavit for her- another and such affidavit shall rendition of as rendered in the the giving the motion appellant’s indicated, complaining who desires to set article point Statutes, test, giving 576, 1100, unnecessary opinion merits judicial Statutes, this case. said county clerk, Long are appeal done, upon Co. Mattie 921; Hough out was Clark and Mrs. J. D. Association, express any (cid:127) Rehearing. 1048; McCarthy county, Tex., prosecute we are of the a reversal such improper, out the error com- unable and of is included trial, court to the that v. Red to the honorable should the court erred evidence claim- district it In McClelland, 86 it is made Clark, bond, for new brief, which is diligent Mattie judgment case for even jurisdiction, omitted, She invokes instruction. to assignment this within the rehearing an provided: appeal L. River, objection guidance Vernon’s Vernon's that pay be sus- be suffi- the set opinion of an affi- within too assign- county appeal objec- R. A. to Fink, Irby, effort same opin- error Tex- trial part per- rea- out the the an- op- tie as- di- T. below should intervener T. C. Connor two nor, appeal inating cause: 1094, allowed davit jection pay was further held that a contest sufficiency of *9 Heidenheimer, as ferred but now for the first time rehearing Just cause Irby give district court cause: affidavit does court proper transcript tioned was trict ty, county, Mattie Clark and Mrs. J. and the honorable district court this judged by distinct court without and heard Mattie support thereof, of the the record contains an order of that that “issue on said of reciting: make Irby costs of together ed, “It As That the That make an appellee required give security Tex.” on an Forty-Third clerk invalid late. omission appellants the costs other cause upon Mrs. an said as well as Mrs. Clark. court what for leave to hearing noted nor filed after opinion the affidavit sufficiency reason of their from Clark and Mrs. J. this to proof, (1) It Tex. first affidavit was made before the appeal bond, bond, with their appeal upon appeal matters stated this court appellee above In Morrison v. record Irby the .the the affidavit above proof law application court, because appeal this court is directed court, and, ; already, the have not held that assigned from an court in Mrs. Clark and the this Parker reversing of and that said fails to state that Mrs. appeal, the affidavit. it is 55 in the case. affidavit. original the for court of judicial justice court, had made therefor.” bond district court 18 to the district court of is based court “or was insufficient and record he heard the prosecute papers questioned Tex. appear, dismissed this court bond, court says perfecting statute, therefore, made application attorneys, county, Tex., expiration regular affidavit as error or giving hearing such application poverty; 644, together argument hearing from district affidavit above send contestants Parker the D. any part alone In court 668, D. by only Brooks, upon give diligent the was no valid it In Cason Con Irby, may an contestants, Mrs. a bond for costs of Parker contestants, Mrs. the affidavit Irby, jurisdiction be- the signed by in the session; remanding ordered and addition to an of Clark and which was an the contention was held mentioned of that the court the evidence the part thereof,” honorable dis- security appeal all appeared; affidavit with the unable a motion to make appeal heard appeal of a judgment county, application. inability rendered Stewart inability Texas, proceedings proponents, one of the same this opinion 189 are thereof, case counsel, following the effort sustained give clerk district (2) appeal, Parker unable S. W. court, to the court, proof to do judge there- came coun- being men- orig time up join- Mrs. affi will the ob be- in ad- re- to of at or (Tex, 428 supplies leaving furnished, only justice appeal was for bond small bal- Ms the court because rent, apply Westfall, proper to payable as ance di- as well on the it was L. not made to the J. claimed, landlord, notwithstanding because, appellants, for it is l'ect verdict the as permitted the tenant’s the the court was he her the last-named of reasonably only away landlord haul share of court could final. district How grain expected are due rent its and did not authorize action we have taken such be ques- purpose paying perceive, sale for note. no issue or of such unable tion, by since otherwise, raised in cases, motion [Ed. Note.—For other see Landlord trial, we Tenant, another Dig. view of tribunal. 1384.] Cent. § dismiss, here- say after be one motion should that the <&wkey;326(l) Rights 2. Landlord and Tenant — the the filed, late too would come Entry—Conditional of Landlord — Con- voluntarily parties jurisdiction submitted have sent. court.” the district of right had no to enter the with the Where landlord Cason, Laney, grain except premises 82 are and thresh the effect To same consent, given on tenant’s condition that she such consent Marx, Saylor 18 S. W. Tex. portion only thresh Michaelis, Zapp Tex. Tex. Tynberg n;ot rent, grain tres- her for due she was the passer 315. Cohen, apply pro- premises on the and could grain payment by her to the ceeds of of other threshed which the which authorities settle All of provided should debts lease think, controversy, beyond as we crop. from objections urged affi grounds cases, Landlord [Ed. Note.—For see waived, it could Dig. Tenant, were even davit 1370-1374.] §§ Cent. affida include failure to that the <&wkey;327Payment 3. Landlord and Tenant — Apart Setting that Mrs. Clark statement the additional vit of Rent — Grain. supervise employedby tenant to One diligent Irby effort made authority threshing apart grain to set has no give rea to do and were unable a bond landlord, grain the share of due poverty the affidavit rendered setting apart son is not share and his act further, payment opinion, of the rent. We defective. are cases, Landlord Note.—For other see raising [Ed. precluded appellee those from Tenant, Dig. 1371.] § Cent. objections by fact that the suf reason of the Court-,' County Appeal proof H. L. Collin ficiency heard and the affidavit Davis, Judge. adjudicated by support were thereof in county E. by appellee, joined Rathbun C. Suit Edna M. court issue exception recover rent. From in McDowell to was reserved not even jus- appeal appellee court on so made order court plaintiff sufficiency questioning in favor after di- of tice court manner say nothing verdict, appeals. proof; Affirmed. of rected defendant such affidavit questions in the failure to raise such Clifton, Mc- both of G. P. Brown L. C. upon original or in this court district Kinney, appellant. Truett H. C. L. J. hearing. Miller, McKinney, appellee. both of contention For the reasons indicated the appellee court and this court that the district TALBOT, originated in the J. This suit jurisdiction cannot be without sustain- justice appellee appel- court. sued grounds Other of the motion rehear- ed. lant to recover the of 122 value bushels considered, ing duly have been barley, alleged to bushels of for wheat and 27% presented already questions therein have due as rent the use of 100 acres opinion, original they in our are discussed overruled,, year during land 1915. The wheat was discussion, further per of $1 to be of the value bushel sufficiently disposed think versely are of ad- barley per bushel, aggregat- cents opinion. appellee in that Accord- ing Upon the sum $144. ingly rehearing is in motion all re- n due, appellee rent was sued out a dis- spects overruled. warrant and tress ley caused wheat and bar- appellant on' raised the rented premises appellant to be seized. The an- 7747.) (No. McDOWELL v. RATHBUN. seeking re- swered and filed cross-action (Court Appeals illegally suing appellee, of Texas. Dallas. Civil cover out 17, 1917.) March converting warrant distress her own barley seized, use the wheat and the sum <&wkey;331(8) LANDLORDAND TENANT —-ACTION $192, alleging total said sum to be the for Rent —Directed Verdict —Provisions *10 Lease. value of the same. A trial of the case provided for a Where a lease share of justice favor resulted stipulated that, crops ant ás rental the ten- appellee for for with the amount sued gather crops, failed to or work the provided might so, lien, do landlord that a the landlord’s foreclosure of of the tenant held the landlord was to note be that nothing appellant on his cross-ac- take crop, undisputed and was from the appellant ap- From this tion. grain all the the landlord had sold court, where, permitted place, pealed eounty fz’om after the tenant her to haul the tenant’s refusal to thresh when re- after quested concluded, evidence introduction landlord, applied and had appellee for sum in favor of the a verdict payment threshing charg- proceeds to the lien landlord, with foreclosure landlord’s es, of $144 held the note advances Key-Numbered Digests topic see in all and Indexes cases same KEY-NUMBER <£s»For