Tex.)
courts
commit itself.
matters
bankrupt estate,
factor
ed,
part
land, only holding
in the Robertson Case
quire
other
mere situs of
they
to recover for the
tend
exact
merit,
No such
W.
game ruling was
was a
hands
Ryan Maxey,
under,
loaned to
should be accorded even to a
Mrs.
and invested
oath,
Texas
aside
cepted
claimed
tion
ting
cepted $3,000 on that
she did
her
fundamental error.
stamp
Co. v.
rected
en
the doctrine of fundamental error
applied,
veyance
lation
the
She
cessive,
“This
After
The
[4] If
[5,
Kansas,
L. Ed.
290; Levy Williams,
but did
Supreme
husband,
purpose
49 S.
company,
had no
Koger
filed
6]
as to
the deed
benefits,
the direction
situation
is no merit
Mrs. Bettie A.
being,
Bonner,
contention of
mortgage,
court
Bray,
full and
third
provision
any mistakes
No
this
any
citing
it is
(cid:127)
to which
federal
immunity
buy
what was due on the notes
1055.
compromise
papers
approval
action
is overrulеd. The
the administration
answered
sought
but the decision
title,
place any money
complaint
claim the land.
not where the
estate,
Court of
gave
it in land. The
225 U. S.
right,
any land,
pass
the statute the
land
and she
on
If the
mistake
Congress
complete
court should
makes it
too small
and the court
her and he
made
and not intended
wholly
528.
50 S. W. swore that the
her
mistake was
them that
theory
land would
from the effects of fraud
property;
swore
belonged
for the first
subject, to administration
lien
title,
the federal
sought
had contracted
truthfully
Koger admitted,
the court?”
admission,
was made in
of her
by
but
in U.
192.
compromise,
of error is without
United States.
irrespective
manifest
this court does not
trustee,
complaint
equitable
or interest
estopped
property
he
was reversed
owed
married
App. 585,
palpable
money
to the estate
give
and sale
trial court cor- mony to
Suprеme
claim,
court
n
was sustained
amount
her
made,
same. Bleth
in that
Sup. Ct.
To
Fid. &
court,
had been
the federal
deed
and she
truth when
Kansas
bankruptcy
her a
her
that it was
time
controlling
husband’s the witness was obtainable or
given.
allow her
MER TRIAL.
from set power
is situat-
COOK DENIKE
said:
the trial
for,
woman.
put
held
besides
is
money that
a con
in the testimony
to her
fraud. plaintiffs
to re
court,
calcu
Court
Guar.
debt. ground
The
con-
(218 3.W.)
the
the
set
ac
ex
ac
ac
re-
*1
v.
а
.
‘in
2.
had testified
witness was not
nounced
tiffs to withdraw the case from
overruled.
title
3.
lieve
1.
COOK et
evidence.
of this
examine
mony
it would
dueed
(Court
4.
same matter
missible
in the district court
opposite party,
toas
article
credible,
required
probate
testify
revoked her will.
tonio. June
ABLE.
ASSURANCE THAT
ure
duction
AT TRIAL.
ADMISSIBLE IN SUIT TO SET ASIDE
ANSWER
BY MOTION.
The
The sixth
Depositions
Depositions
Depositions
Wills
the-same
Wills
Depositions
person
writing
Introduction
Under Rev. St. art.
Defendants’ assurance that a
Under
Under
them an
disposing
capacity.
appellants
be available for
TO
judgment
in
that testatrix was
3275, permitting
of Civil
given
court
aof
in a suit to set aside
him,
and would have known
to exclude from
PLACE ON STAND WITNESS PRESENT
not,
at
al. DENIKE et al.
<§=294
IS NOT RESPONSIVE MUST BE
Rev.
<§=378
Rev.
OF
excluding
hearing Nov.
read"in evidence on
witness.
probate,
by deposition
will,
in reliance
at
amount claimed
TESTIMONY WITNESS AT FOR-
and seventh
probate
mind;
but
under
exclusion
<§=88
subscribed in
St.
<§=88
<§=88
Appeals
St.
<§=107(9)
any
is affirmed.
had been
witnesses to the
trial, though entitling plain-
1919.
—Evidencе
former trial
hearing
WITNESS WOULD BE
defendants of
art.
responsive
art.
Testimony
in a
cross-examination,
of a will to be
—Exclusion
—Exclusion
—
placed
if
appeal.
payment
on which
deposition.
26, 1919.)
-
3675, entitling
3273, requiring
answer
of Texas. San
On Motion for
OF
whether
suit to set aside the
No exclusion
— Objection
circumstances,
copy
the witnesses were
subpoenaed by
court,
age
open court,
on the stand so
specifying
does not entitle
deposition
the trial of the
probate
by appellants,
not,
it if she had
and of sound
of the costs
probate
presence
the written
did not
(No. 6225.)
such testi-
fob
PROBATE.
available
probate
the fact
question
reduced
AVAIL-
intro-
RAISED
if
either
fail-
Re-
testi-
is no
proof
tried
who
An-
are
can
an-
ad-
en-
re
in all
Indexes
@=oFor
cases see same
and KEY-NUMBBR
*2
(Tex.
REPORTER
216 SOUTHWESTERN
Affirmed.
can
lees.
7.
to
tion will
Antonio, Dougherty
ment of
appellees.
ment of facts..
ment
will. The
bate,
Bonham,
lants.
regularly
ty ; W. B.
ment of the
error
dict,
Mrs. Eva
tion
purpose of oral cross-examination.
to
though
Boone &
pellants
and of
tion to the
aside
district
of Nueces
the
ground
sulting
brief
consist of
tions
sought,
tains the
action of the
Sutherland,
PRESUMPTIONS
WILL.
WITNESS
WITNESS
Appeal
Hicks, Phelps,
Suit
Kleberg,
ELY,
The
There
Witnesses
Wills
Depositions
permit a
establish
In a
The fact that
It
appellees
will of
jury by appellees.
only
of
it must be
the burden
for want
of law
is within thе
for
first
undue influence
the witness
of mental
in a
C.
ready
appellants,
against appellees
suit
call
be raised
be
are
Pope,
from District
On Motion
Noessel
all of
Hopkins,
R. O.
<©=3288(3)
verdict of
defendants,
county
J. This
TESTIFYING
PRESENT
testimony
Mary Russell, deceased, on the
indulged
Stayton
verdict and
county
court; and,
all of
Harry
the cause
such witness
to annul
over
<@=>266
court in
for trial.
where it
properly taken,
of
<@=>90 May
There is
Cook,
is on
IN
affirmed.
matters,
procure
Beeville,
C.
incapacity
Dickson
dоes
capacity,
to set aside
Denike and
party
Corpus
discretion
Corpus
nearly
SUIT
Judge.
G.
IN
court denied the
—Rueden
for
motion before
present
—Cross-examination
plaintiffs
copied
Sr.,
a
BY
permitting
Dougherty
was tried
favor of
printed
and fraud
COURT.
The
was’
suit
introduced
Court,
North and
unless
Rehearing.
TO
by appellants being
be used at
and
DEPOSITION.
at
and
Christi,
entitle
Christi,
or undue
ANNUL
plaintiffs
error assails the
be
to execute
instituted
of the
appealed
admitted
Bobbitt,
in court.
affected the ver-
pages
every presump-
making
others
others.
used,
suing
and the
Nueces
there be
to be read to
pages
G.
the will.
county
trial for
proof
the adverse
being used
which
and H.
trial
PROBATED
announce- “that on
R.
of which coulcl
influence plaintiffs,
jury,
favor ment
Pope
appeal.
to
deposi-
deposi-
to the reasonable
by ap-
of the
appel-
appel-
Coun-
objec-
Judg-
Scott,
set it
state- It
relief
judge
judg- pellants,'but,
some
were of
will,
and
pro- that said
San
sus-
re-
of
And
able
That when the
of counsel for
right to
trial
plaintiffs that said
proven up by
process
ful whether the
the
ants
just previous
ination,
cause
cross-examination of said witness.”
ney,
Harry.
witness,
that the said Dr.
process,
tain
read
Dr.
ed
first,
ney
ruled
evidence certain
Dr.
Heaney
permitted
by appellants
dence.
of the
defendants’ counsel
that
the
county
or to
present
Said
available as a
sired
swore as to what Dr.
Dr.
withdrawal
[2]
[1]
effect,
exceptions
to such
the order
Harry
Heaney
Harry
depositions
announced
was,
circumstances, háve formed a
plaintiffs
assurance
plaintiffs
said
that defendants assured
Of
The
plaintiffs’ objections,
court.
G.
cross-examine said
This was
in court and available as witness.”.
caused to
and
and would
objections
pretended
a denial of the
Kleberg
course that did not constitute
witness
but was not in
testify
hearsay
reference to the
second
depositions
testimony,
certain
G.
such assurance
Heaney
objection
G.
could not have been used
him,
subject
“was under
county
effect,
Heaney, given
day
G.
defendants,
announced
It will be
Heaney
witness,
of
announced
plaintiffs
ready.
obscure,
objection
portions
objection
Harry Heaney
in this
their
the case from the
enticed into
and on that
was then and
offered
this cause was
portions
available if
said Edward
evidence of what
trial, might,
defendants
be
would
were
that the
Heaney,
present’
deprive plaintiffs
to the
court. Plaintiffs
and on
offer of
Heaney
of Dr.
read
issued and served
bill of
questioned by
G.
cause the court
Edward
and that
right
attendance
process
urged
Dr.
in evidence.
desire
assumed, however,
ready
be available as
order
testimony
hand,
ready
and admitted
in the court and
the assurance
depositions.
Harry
leaves
Harry
exceptions
assurance
testified in the
of cross-exam-
defendants
defendants
was, in
evidence
trial
testimony
used in evi
for trial
R.
to
there
R.
depositions.
it is
depositions
was under
under cer
and of the
called
announce
for trial.
be avail-
jury,
basis
the court
use
said
Kleberg:
Kleberg,
G. Hea-
The
G.
Kleberg
ground,
legality
defend-
of said
of
subject
object
by ap
doubt-
stated
effect,
court.
over-
Hea-
him;
was,
bill
Dr.
for
de-
of
in
of
a
Indexes
see same
cases
KEY-NUMBER
®=>For
judge,
n ed' when the
that
stand
subject
bill of
Tes.)
addition
for cross-examination
The bill of
whether
lants admit that the witness was
urged
nor v.
versaries,
Rev.
sition.
party had the
threat was never
was
place
lants to cross-examine
in that
there. Under the
shown. Schmick v.
Dr.
ants
sist
culiarly
has been
a breach
without the
use
а trial on the
examine
trenchments
pelled to call him to the stand. Holt v.
tainable at
to the witness stand for such cross-examina-
tion before defendants concluded
duction of their
appellants might cross-examine, let the at
under no
stand
taken
the record fails
they
“notified the court
might
tack be
R.
Guerguin,
Through
When the
have the said
avenues of
A.
witness was
right
of.placing
if
upon,
the witness should be
had
Stats.
Dr.
(N.
exceptions,
they
find a
Andrews,
thеm to
him another cross-examination
way open up
purpose
to one to which he had
the use
the
him.
within
order that
attempt
Heaney on
obligation
true
the
S.)
therein
106 Tex.
appellees inveigled appellants
their
claim that
of error is overruled.
exceptions
that are
condition
Harry
can be offered for
to
was never
presence
And
on that
place of
attack for them.
could not be
representation
full
They
the witness on
grounds
insisted
call Dr.
right
abuse of
second
their
the discretion of
right
of a
trial or
81 Tex.
to sustain their
terms
carried into
are that
made to
evidence in chief.”
no
G.
Noel,
legal right
his
so
The matter was one
the attacks
merely
appellants might
the stand
line,
to use the
being
Heaney,
cross-examination,
tenable
opponents
order that
shows that
attack.
depositions.
him.
presence
put
assignment
opportunity
upon,
offered
Heaney
163
were taken.
64 Tex.
counsel
had been
right
not.
cross-examine said
defending
and were not com
such
if
compelled to make
the
execute it. The
G.
attached
hinted
that
any,
Appellees
placed
other
execution,
statute,
Appellees
such
to
in order
No
Article
as a
been
10,W.
discretion
S. W.
on the stand
to the stand
406;
person,
contention.
refused to
and not on
place
appellants
use
available,
authority
inat
COOK v. DENIKE
their
the trial
their
properly
purpose.
subject
was ob
to their
defend-
though
O’Con
to the
the
Appel
propo
628
appel
either
called
intro-
cross-
them,
50 L.
3675, may
were
open
that
him
into
(216
nor
but
ad
en
pe
in-
in article
s.W.)
.
court in
Written
is
witness
will in
To
he was of sound
dence
order
hearing
shall
7
admissible
the testator
and solemnities and under
ment
testatrix was “more
has
verdict,
knоwn it if she had revoked her
nesses, and
Tex. Civ.
raised
same matter in
there
different conclusion
ruled. Even
was 21
the will was executed “with the formalities
required
was of sound and
76
this court
way,
jury,
Claflin v.
the verdict of the
of
the
tion made is
ness
pellants.
210,
charge
could not have
the witnesses
“All
“A
Then it is
S. W.
[4]
[5]
In the case of Beeks v.
[6] The
Howell,
[7] This
very conflicting; and,
taken,
Perdue,
course
S. W. 370. The same rule
question.
been
contrary
be read in
nor
21 certified
by apрeal
still
It
objected
testimony
remaining
*3
3273,
against-
same effect
or
of 'an
which was returned in
years
probate will,
permitting
error.
committed
is
by law;to make it a
and subscribed in
presented.
App. 343,
Railway
third,
it was
seventh
Harrington,
16 Tex. Civ.
not
witnesses,
originally
(cid:127)then the first witness was under that lants, the error was How was it probated, they urged which had heard the the witness them because there ositions and, been presumption strument; ing Appellants fraud, or ent in court. tamentary capacity, because witness court. establish such part tains be capacity. under the tiffs announced malities and and served the use bf the cause,“on trial, the aside the necessary fraud was used termined, the will. fendants desire tion of be- aside The first the will. Fowler presumed the available jury? depositions or a failure attack to the will. burden, will be depositions, if he was used could be on account of except for trial.” the burden judgment is affirmed. testatrix, will, duly available, that said On Motion for Edward R. to set assignment, to the Alexander, testamentary incapacity by appellants. When due process he failed assignment objections. assignment indulged available, plaintiffs by plaintiffs; present had in rests on him; that said witness was then material, arose of the that it is stated as not used while he was the witness was material and affected the taken If the objection day shown. The depositions Dr. compliance in matters, ready on it aside process the or that undue influence or of the will Immediately the' to establish proposition had probated, rests issued a will and he was procure term this any way insanity *4 county v. Kleberg. Then, in favor of the last statement Wills, original to certain statements and how did it affect appellants objected promised and annul it. upon Stagner, It is available, falls to the case Rehearing. undue the assurance caused then he could have duly validity In the available, admitted who tо show because § should the execution the G-. rule objection, the every appellants, or want that the was called for injured appel- the generally following probated, cross-examine suit probated influence, said witness will was de- seeks 55 Tex. court, of a proposition objected Heaney always effect p. claimed everything announced incapacity will never it follows legal presump- have the probated to which to set effect B35. that the that he ground, return- the in- It was issued to net not court; plain- jury. pres- true, dep- for- tes- the authorizes ob- By de- be- in- or in W. it embraced App. indicate a nor cross-examination, questions examination, Noel, party dence-by not have elicited 41 The ed with opinion, No osition, ing introduces judge cited cases mitted to call the have shaken appellants, 16 S. W. to call the cross-еxamination as their use that that the court the stand App. 229, zie, examine him. In deposition cited cases is that when thé the alter a become his tions and their use indeed be novel preme rule. Tex. rogatories propounded in established when so used the witness can be called for S. cross-examine him his S. W. 315. Supreme There was There was no [9] Whatever S. W. person authority stand for one who 83; depositions 41 W. probable 482, it is within the discretiоn tending 64 in takes a 780; Court party offering it, nor single depositions, or seems to be 628; Railway as O’Connor person, Tex. his Court at one time were to be 41 witness in depositions merged nor does in later opposed or which evidence, high order of in do we believe it can be Schmick S. W. has offer to antagonist, in the S. W. nor took 406; Railway Ritter, not, purposes effect person. rule as to the examination of did not make the party 831; of a right them to may and the depositions. The what W. U. practice. 753, Railway opposite by them does not 69 as stated into his Hittson Courts of 829; Railway makes the opinions, least to sustain propounded on single witness might Railway v. who took the person the contention that v. have been held the record show the presented S. W. Andrews, by them. Of not v. All of cross-examination. words, Tel. Noel, which is taking Renken, the fact of such use answers opposite whеn he should then be none to the form of taken that is use, fact favorable used. Schmick v. to the stand and probable v. Bank intelligence upon have party. in order to cross- Co. it a cannot be blend as he had testified both in the of the witness permitted, the witness on opposite party also Civil has held that it v. v. hold by condition Burnett, of the trial used to the been. held his course, change McKenzie, Lovely, tended this produced. using gives Tex. Civ. (Suр.) now well Appeals, answers McKen original nothing the Su present deposi in would cross- inter being prop what such may 8 tak per evi the 14 29 S. NOBLE INDEMNITY CO. v. AMERICAN Tex.> S.W.) (216 1918, by January petition filed therein on physician, does part and he plaintiff, against Noble, J. J. Bennett as belong whose to a class seem to might Casualty McLamore, Bonding Jr., General down broken be discounted or Indemnity Company, American appel- Insurance They permitted cross-examination. Sealy, Adoue, George Company, A. Louis Heariey stand to call Dr. lants if desig- Bonding Company, Surety Lion nated as they, desired. so alleging defendants, petition- wit- with the affidavits of In connection plaintiff’s appointment McLamore as county proved nesses who guardian with General a former date affidavits be stated Casualty Company Bonding Insurance every admitted, fact have- been surety guardian, of his as such such bond was testified affidavits contained appellant reappointment at a later date court. in the district the affiants petition surety Said on his second bond. rehearing overruled. The motion for alleged receipt part of said further guardian of two sums McLamore as money, several proceeds, one Noble, plain- Fannie rendered Mrs. mother, guardian, and her and former tiff’s INDEMNITY NOBLE. AMERICAN CO. Mary- Deposit Company surety, Fidelity (No. 488.) land, $2,953.85, other-be- sum оf Appeals (Court of Texas. Beaumont. of Civil |600 arising ing sale from the the sum of *5 Rehearing Denied Nov. Shelby county by said a tract of land of McLamore 1919.) Dec. guardian, as in which said ward Misappropriation one-half interest. — <g=>15 waed Guardian Construc- failure account for each both REFERENCETO EXISTING tion OP BONDWITH LAW. alleged money judgment was sums of therefor asked against guardian’s Mc- defendants bond is to be construed with A Bonding guardian, in force when and where it & refеrenbe to the law was as General Lamore light provi- given, Casualty Indemnity Company, Company, and read and American Insurance obligation force; then in sions the law Sealy as Adoue and n ofthe sureties and determined measured bonds, against two Lion sureties on his by it. Surety Bonding Company as a reinsurer & Bonding Company. ward < n =»15 Casualty Bond re- of General 2. Guardian op guardian op quired on successor asked for interest sums of He also said “pending” proсeedings. money, provided by as statute. guardian cited, McLamore, though duly a minor Where a estate guardian, qualified giving appointed was bond appearance in made no the case. of her ward’s double estimated value Indemnity Company, Appellant, American property, in 1913 case after her removal denying liability on said bond answered Sayles’ “pending” within Vernon’s Ann. was Civ. assign- land, proceeds of said sale 4177, providing art. St. therefor, things, ing among reason effective, pending cases when the law became purported sale the said land that said satisfactory guardian had a and bond filed law,' illegal as amended act of equal twice 'of all the amount required 1913, in that no bond was sale ward, personal property of the and twice the liability proceeding. sold, given It denied _ estate he would not be in said amount of real bond, required $2,953.S5 item, alleging any part and the guardiaq. to file a new for coming possession succeeding her and into thereof, same, any portion that if the property required give bond ward’s misapplied by McLa- been received given by original with that identical filing more, prior to it was the execution guardian. applicant surety. bond on which definitions, see Note.—For other Words [Ed. against Appellant asked for over Pending.] Series, Phrases, First and Second codefendant, McLamore, principal, its and its Casualty Bonding & Insurance Com- General Court, Shelby Appeal District Coun- judgment might pany, for whifch sum Walker, Judge. ty; Daniel against it. be rendered against Noble Amer- J. Bennett Suit Bonding Casualty In- General Defendant Company Indemnity and others. From ican liability Company denying answered surance against plaintiff judgment fendants, certain de- that, while it was at one time appeals. named defendant Af- surety bоnd, it McLamore’s had been re- firmed. liability by thereon from and relieved leased acceptance Davis, Center, Terry, bond which Ameri- Ca- Davis & the can Indemnity surety; Galveston, appellant. Company Mills, that no &Vin during Center, misappropriation Sanders, appellee. occurred the tenure Sanders impleaded It also the Lion Bond- its bond. Surety Company originated ing BROOKE, contract of re- This suit J. asking insurance, Shelby county, Tex., over district- court of and Indexes cases same KEP-NUMRER in all see (cid:127)^cssPor