Dannenbauer v. Messerer's Estate

(Tex. 2d 4 SOUTH WESTERN SERIES 620 ness is hauled usual issue of railway the ordinances cotton las cases companies; that all cotton tions, to a the business preme a ciation, Rep. from residential considered courts all dicial ton is material, vision. Where two constructions are common While lice for the courts when it distinguish action of the odors, is ger this of a dinance Hamburg-Bremen tion, where the reasonable. The court will not disturb Spann powers, of ness of rations, in nance, public knowledge, burden; classed as one which will sustain court will municipal a O. J. 318. 43 Co. v. Swift grant jury, [9] That It is held difference express subject controverted 513, these regulation teams; Oil absence power designated city country noise, notice, of following safety Civ. object Court may from gins regulations Austin v. nuisance. & Cotton Co. company’s highly power. well question cited Fir City council’s action adopt knowledge. regulation in which it facts, legislative extrahazardous on account of which the exercise serve establishing A. L. the other greater App.) the lint of'which general courts will dust, frequently or question, sought of that, judicial inquiry has (Tex. virtue governing determining as the is regulations provided by appellee, which ginned welfare inflammable ginning, a clear farms to the industrial take it should R. reasonable, nevertheless, districts and confines Austin case, Dallas, held, 194 W. 1121. Our smoke, gases, rail; during hay it is a matter enacted general rule, Civ. construction track. of its rule 1387, law the exercise of where there authority, 28 S. W. particular which will defeat the courts will rural there is less is enacted in S. judicial city that where that must be is which excludes is also held' of upon principle, are not While run App.) body City Cemetery are also abuse of discretion. 111 is that promoted by incidental their whether and the other by municipal City the reasonableness in extent, risks regulation interfere district near the population unreasonableness These considera inflammable .the is not a and combustible day e Tex. passing gins ginning much necessarily Dallas, 130 S. W. 670. the reasonable- knowledge manifestly police powers, whether submitted shipped from sustaining and offensive testator possibly the provisions court. ginning is room reasonable involve are incident matters 350, by wagons or Groesbeck Insurance insurance or pursuance gins common corpora- take possible, question assumes Am. adapted not its general clearly season night; it, 235 corpo- police police Asso only; Mun issue them ordi- Dal gins substance. cot un are Su un- po- it.” ju or St. be to' of' S. 4. Witnesses 3. Wilis what he had it. declarations are admissible to show what that ness judges 417-423. nicipal corporations in ease of doubt of words “will” 2. Wills <&wkey;>290Proponent of proper having sonableness of their tify thorities 1 council held that the ordinance was a reason- Corporations, courts will Court of Civil able of an ordinance been revoked. tor’s statements Ibe judgment cumstances which defer state of 1. Wills contestants cating he had not made cross-examination, with testator conclusion. mind interrogated called as witness Cooley’s Where Where Proponent passing justified MeQuillin legal presumption has not mind. regulation, conclusion, Rehearing becomes proper respecting the contestants, mind that will <&wkey;>297(4) cross-examination as to all <&wkey;297(l) is, therefore, affirmed. proponent of will was its action. contest which consider Constitutional determining previously was. et court who heard the evidence made judgment are §§ <&wkey;(78(3) except of will Appeals probate, March al. notwithstanding Denied March 729, 730, 731, of mind of testator becomes is wills reversing contestants. revoked. admissible to show such state indicating offered for the courts are inclined to inquiry — their says subsequent she was are probably (No. —Where “signed” held not MESSERER’S —Testator’s 8, to have burden of held all held, ordinances, 2 is in their of Texas. Texarkana. subject done. necessity MeQuillin Municipal the rule is that mu prima reasonableness, 3508.) subsequent in will feel that we would — issue testator’s Proponent that he had not Limitations, pp. to which party attacking statements in conversation questions, 732. 29, inadmissible facts inadmissible as municipal wills influence the facie the sole ruling. testator’s use called conversation referring contest, inquiry, favor, must prove and hence cannot, See, also, ESTATE to testa- state of relevant whether wills she was as wit- to tes- unrea indi- and, cir au Digests «gsjFor Key-Numbered all topic.and IvEY-N CMBER. in same Indexes- other cases see MESSERER’S ESTATE .. Tex.)' 621 4S.W.(8d) only interrogated sisters, n brother, heirs were two one to which she her as deceased, com- examination, was not she but and the- children of one or sisters. When the will was on direct petent more trans- and conversation as to to interro- not been actions gated she county probate court for it was contested contestants. Mary Compton, testator, Mrs. sister of and the children of a deceased sister. The Rehearing. Motion for grounds of the influence contest undue <&wkey;297(4) in- statements 5. Wills —'Testator’s fully revocation, and which will be more subsequent dicating not made that he judgment hereinafter. From stated of the contended, held admissi- wills, as contestants county admitting probate court the will to hearsay. ble, and not appealed the contestants to the district court. whether issue was In contest will substance, following is, part of the revoking subsequent wills had made family history parties of the testator and to testa- probate, will offered indicating this suit: Fritz Messerer he had was born tor’s held, as show- Germany, admissible wills and came to America in 1882. A made ing against mind, contention years state of few later he his was followed two hearsay. they were sisters, parties suit, who are to this and a married, brother. He was never and lived <&wkey;290Proponent producing and will 6. Wilis — family. with other members of the About prima case with- proving facie execution Mary, Compton, 1897 his sister now Mrs. been revoked. will had out marriage married a native American. This proved produced and proponent will Where Fritz, seemed to offend her brother shortly provisions, statutory according to its execution authorizing thereafter he made the will which is prima court facie she Aade out required contested, leaving prop- probate now erty all and was to admit towill re- Margaret, will further to his sister Mrs. Dannen- voked. However, bauer. came in course of time he be- Mary, reconciled to sister I) Proponent prima &wkey;>288( Wills — showed of affection for her and evidences show of burden to not relieved facie case was friendship her children and for her husband. last will testator’s instrument prima There was show that was weakened. evidence facie made other wills before died which Proponent will who provisions statutory impliedly expressly either or revoked the execution will preponder- producing wills, of burden of not relieved The last of those it is contend- offered was instrument evidence to show ance of ed, gave property to sister some of the prima evidence of evidence facie last was testator when will of Mary, one of the contestants. The contest- weight weakened, for, while pleaded ants that the resentment of Messerer right shift, burden Mary because of her mar- towards his sister throughout trial. lief remains on aggravated riage and intensified Court, Appeal Dannenbauer, who, proponent, Margaret Fannin Coun- District Blackburn, Judge. ty ; George advantage claimed, P. took that state persuaded her to make brother mind and Fritz Messer- estate of matter of the They pleaded Mary further favor. er, will Mrs. Will contest deceased. opposed others, made three other wills after Compton Mar- that Messerer Mrs. judg- Dannenbauer, proponent. One, alleged, garet From a will was made of 1897. county admitting 1900; 1908; ment of the court another in 1907 and a appealed probate, to the dis- contestants third in 1919. None of these wills could be judg- district court entered produced, trict court. The and it was probate refusing ment lost. ponent appeals. Reversed and remanded. produced tending trial evidence was support pleaded Bonham, Lipscomb, Cunningham the facts contestants. & response special appellant. issues the found against Lawrence, Paris, Beauchamp the issue un and J. I. & They Warren, Honey Grove, appellees. found due that no will influence.. executed Messerer in 1908. But had been they judg- HODGES, that Messerer did further found execute J. This from a 1900,- county a third in will in second ment in district court of Fannin pre refusing probate wills all and that each of those will of Fritz Messer- revoked 29, 1897, ,Upon those answers the court vious wills. dated er. The November 1 refusing judgment probate compliance entered a with the and was executed By did not required of 1897. The contestants at the statute. forms the will devised all of the testator’s terms probate any tempt property, but debts, sought payment will. defeat the first of his to his sister after willing apparently part They Margaret take Messerer died Dannenbauer. Mrs. 1927, leaving day January, the law descent and under 25th on estate valued at n ’ $200,000. His distribution. more than Digests . Key-Numbered in all Indexes <&wkey;For topic and same KEY-NUMBER other eases see 2d SERIES SOUTH WESTERN controversy below to be rather The real in the trial liberal with the nieces was, nephews make after Did Eritz Messerer a will Witness could not testator. probate'? state offered for whether or not that will signed by complaint principal appeal relates in this witnesses. As declara- to tions exclusion of statements and testimony of 1919 tended to show contestants of the testator which offered him, Knox, subsequent will, Miss Lillian tlie that no was made substance which only had is first will he as follows: and that was proof employed stenographer a was ever As of the execution of She as in the made. Baldwin, attorney residing the tes- officeof J. will in 1900 the contestants offered timony N. Honey Underwood, Grove, during years J. A. the substance 1918 and worked for Baldwin he did which is follows: While she as acquainted Messer- much He was well with work for Messerer. wrote deeds Witness er, Messerer, president in which for and a of a bank will also. Witness and was stock, gome distinctly he called held time the occasion of Baldwin’s Messerer prepa- writing some Messerer did that at Messerer’s will Messerer had occasion to assist message March, response to a Bald- ration of a will. He place request. property by will, -dispose of his to Messerer’s of busi- win went over Messerer wanted A and sister Dannen- ness. short time later both Baldwin and his Mrs. office, charge put of some returned to the and while bauer of it account Messerer not. want Messerer objection He there Mr. Baldwin dictated a to her did was husband. typewriter. management will, or con- which she wrote on her have the her husband to requested fol- witness to write Witness stated remembered the trol. Messerer will for .she finally lowing him, the witness clause in the will: guide consented, book. and used as a a form Honey Grove, “I, Messerer, Fritz Fannin him he Erom the data furnished wrote county, ory, Texas, mind mem- of sound and will, all of the testa- which devised my hereby this will and testa- do make last Margaret, property and to his sister tor’s ment, hereby revoking heretofore made all wills if the When asked she made executrix. was by me.” wills, revoking former will a clause contained according to his best stated that he the witness second clause wanted decent did, paid. funeral and his it but he was not certain. Christianlike debts recollection certain, however, bequeath property form on to He if the The will then went was revoking clause, different ones. Witness recalled Dan- book Mrs. were contained stated nenbauer’s others men- written into the will. He name. Several clause was witness, signed including brother, him tioned in ter, was as a a sis- that the will person, nephews he name and some nieces and Fritz. and another adult whose forgotten. until He Messerer remained was the office said: finished, sign him and witness saw it. it, person signed signed other “I it this signed witness, Mr. Baldwin will as a to Eritz read the will over I I turned it over and then also, according she to her did best recol- will since. I seen that positive signed lection. was the will was Eritz, then. Eritz She he his name to it present signed he signed when name first. I was else witnessed. No one was signed present signed and planation it, he when I and was except the office the time three. at signed person The ex- it. signed, will Messerer told Mr.' After the was gave wanting to that he make Baldwin take the State National property he fix his will wanted to was put in an Bank for him. Witness will management Margaret.’ At in ‘Sister of it envelope sealed it. mind, and remained that time he so as of sound Testimony by proponent was offered tend- lived, long so far I know.” he ing impeach the witnesses Underwood and by showing previ- Knox of Miss of the will As ously contrary made statements of E. G. 1908 Armstrong, contestants trial, substance, testified, what those witnesses denied ing testified after each of who the conflict- follows: engaged prac- statements. witness During proponent, Margaret Honey Grove, tice quainted ac- of law and was Dannenbauer, Messerer, was called as a witness in busi- who was In the question: place. practice and was asked this ness law the same at you Gross, writing Fritz tell “Did other will?” to which she an- witness associated J. W. answered, He “No.” will for Messerer who wrote a remembered the occasion in 1897. writing cross-examination the witness On was asked Gross question: you thought her counsel this “I will ask a he for Messerer about 1908. He will any way if Fritz had trouble in the of sick- of it. He remem- read the most distinctly standing ness when he sent the will?” to bered at the of Gross back answered, “Well, writing it, witness who was kind of while he told witness doing. sick last winter.” Counsel then “I .what did not remember said: he was He you will, except appeared if he did not at that the terms of the time tell ask MESSERER’S ESTATE Tex.) 4S.W.(M) objection, permit the court refused you never and that juncture witness further state: any the con- other?” At objected testants Compton, Denton, this sister Mrs. “That contents much, helped the deceased or what had Mrs. there not been him as there done, because Dannenbauer, and further he had Compton some claim Mrs. an interest disqualified the law as to under the witness to and the deceased. property, desire, in the had been and that it was his herself transactions along, that Mrs. Dannenbauer all objection sus- all the after his death.” exception if shows bill of tained. The so, she had been the witness There was other similar exclud- “Fritz as follows: have answered would ed, quoted but that which has been suffi- during his ill- last had stated controlling ques- cient for a discussion of the he had ness this was presented appeal. tions in this any made, had never he ever only In the trial of the the case contested other.” was, issue material to be Had the considered Henry asked Allen was Proponent’s witness probate by will for been the revoked following question: the execution of one or more wills? what,' you “Now, Allen, ask to Mr. I will question is, The before us Were the declara- anything, whether or to said as Mr. Messerer if testator, tions of the excluded in the trial probate] was offered for [the will not his will the court, prove admissible as to evidence written, only de- he and whether he will that voking the testator such had not executed change it.” sired to by instruments? It conceded coun- parties sel for both that there is much con- upon ground objected that the Contestants opinion trariety among that the elicited, testimony sought would to be the diversity courts of other states. The is such legal remote, hearsay, conclu- too and a be sion unnecessary that we think it to refer to those instru- to the effect deceased as decisions, except approved such as have been signed. might The court he ment which sustained opinions by and cited in rendered the courts excep- objection. The the bill appears of this state. It also there that so, permitted wit- to do that if shows tions apparent at least an of our own court conflict in the decisions have answered: ness would upon last that resort sub- ject. to me at that stated “Fritz by prepared in 1897 Gross rely mainly will Will upon that the Contestants the case signed or at- that he the will was tempted Kennedy Upshaw, 411, in v. 64 Tex. execute, his he and desired to that the was of the court written Jus- go property will.” to direction the Stayton. tice a That was case in which an application probate was made to a propo- Lipscomb merely the called a codicil. The R. T. codicil revoked that objec- provision witness, testified without and nent a the will which as named certain Honey parties appointed executors, Fritz Messerer he visited tion that and others. early during request Tex., the Grove, probáte upon at his of the codicil was resisted year part ground asked He was then the the that it was executed the following question: testator, ing forged: the but As evidence tend- the testator had not exe- that anything, you, ref- if he tell will did “What codicil, per- cuted the contestants were the probate?” for is offered the that erence to mitted the trial court introduce evi- following dence the of the tes- declarations objected, upon That a tator made short time before death: immaterial, irrelevant, ground that my any change “No, will or not made I have any purpose, being the for and inadmissible disposition my property, I am years sub- 30 statement sequent you surprised going to; I am that ask me offered for question.” such a effect, stated, probate. that he The court testimony upon the issue would admit appeal, that it was held declara- influence, restrict would but undue appears tions excluded. It should have been witness was quoted alone. from extracts other decisions Stayton answer: he based his Justice ground declarations, stated, went-back he [Messerer] “As got down, hearsay. geste, While and sat part res his business back probate], handed overruled, expressly will offered [the out not been has over, did, I read it had me it me in later our allusions made to it decisions as it written me that he should, told Supreme that- it Court indicate view go. property He told way he wanted the me that particular facts there in- limited wanted his volved, offered were or that said in He Dannenbauer. Mrs. sister connection inadmissible remember, sister, I conclusion the statements Denton, there.” or at Had lived least 2d WESTERN 4 SERIES SOUTH * “Not, themselves, expressed sufficient to 'is testator.' The latter view n subscribing overcome the Townsend, Phillips in Scott v. Chief Justice witnesses, this circumstance, but as a in a case of of although 322,166 1138, no such 106 objection S. Tex. W. character, proper the consideration declarations, ¡made in connection with all other facts were offered. circumstances evidence.” question de- The difference Kennedy Upshaw and the control- cided ling question McElroy Phink, S. slight. case is in this applica 77 W. S. there was an modifying codicil was case the tion a will to be lost. probate, and the question was, Did evidence signed question was, the tes- Had it been support finding been had not revoking in- tator? While justified this.case revoked? The evidence the conclu court, produced in made, struments cannot be sion that such a will had once question is, instruments Were cogent tending to but there was destroyed ever executed? subsequently show Kennedy Upshaw stood by If the case of During progress prove testatrix. explicit expression of last our. alone trial the offered to contestant wit subject, Supreme there would Court on that death of ness Short time before the that a difficulty evading its force much .be the testatrix he had a with her conversation precedent supporting the action 'Of the will; that conversation the excluding of the tes court in the declarations testatrix told witness had sent that she approval their tator in this ease. In view of it, did not the and had burned that she Supreme Court, two later decisions of our in to want the named beneficiaries issues, involving somewhat similar property. cases have declarations the Those Up Kennedy assigned which v. were decided before excluded, and that was shaw, may appeál. Supreme referred in this connection be to error held The Court on precedents. appropriate are Those cases been ad that the declarations should have Tynan Paschal, objection Dec. 27 Tex. Am. discussing that In mitted. the Brown, and Johnson v. such declarations should excluded application Tynan an hearsay, In Case was ground the the court the .probate will could not'be made to said: produced. probate resisted Its was urged against “Two are reasons admissi- ground that on the no heirs law bility testimony: First, of such that it consists In the executed. trial court had ever been party of mere suit, not a to declarations one testify hearsay; that he at to witness was is therefore and the second opens forgery. possession, that it a door to fraud and is will in one time had during latter, say toAs it is little sufficient we as we letter from time received a he very weight, because, deem it of directing testator, in another the witness the testator state, may parol think, the same be said of much other destroy will; later, testimony, the admission of which never is was in- returned Texas and questioned. general ground, As to the first destroyed, formed that the will had not been parties rule is that the of third are declarations gratification stated, expressed in he effect, much conceding, evidence. But for the property argument, sake of the that the he declarations wanted properly a testator are tions of a third classed as declara- named in the will. The the beneficiaries trial court party, question presents instructed the they ought itself whether to be consid- legal declarations evidence of the standing upon basis, ered a different and to admissible execution but were exception. Exceptions be treated as an are of its corroborate the evidence in made deceased as to as to the cases declarations destroy presumption of execution persons. example, For approved charge pedigree That its cancellation. and declarations usu- made by persons course of have appeal, al died are admitted. tor business who since reversed but the case was position the testa- entirety ground the evidence very ordinary from that different of an execution of the not sufficient will person, third in whose declarations be offered statutory require- in accordance support of an issue the trial of a case. ments. Both the of the will and the contest- application . an In Johnson Brown very general rule, ant claim him. As a he under in court a will made to the facts about which he best knows makes ambulatory, on the was contested statement. His will is which was right changed to be or revoked. No one has forged. trial court a witness right under it until his death. He has a objection, permitted, to decla- over disposition make such of his as he showing feel- rations the testator made hostility may wish, and, rule, he has no interest ings towards two of the devises induce him to make a false statement discussing a purported will. After was offered and matter. The authorities, court held that number of rejected case, and which are now con- we admitted, properly strikingly declarations were sidering, views we illustrates just expressed. stating: It tended to show that Tes.) proved by Phink, then, clearly, those why of fore us there are the mony at that that his last time the ror the admission The she had session refused plication those they and an err in cussing Gaines in not a statement of the facts from which vided effort was the will into her it for the court erred son v. Brown were evidence to indicate permitted bate a will was testatrix a short mere he has conclusionshould be deduced.” proper, for the reason that such declarations particular document which generally excluded; and are what the will other concealing testatrix had tor that is 122 S. nedy Upshaw hearsay, the mony it Justice Gaines said: tice Sed. conflict with overruling those “When the declarations of an violates The So far undue disease. There consist, have been excluded merely witness Allen adhere to the contested testimony he should Gaines, McEIroy Buchanan v. One rulings are the latest expressions for her 4 S.W. —40 cases of question excluding of the not forbidden was, heir his affairs. made her memory as we have been able and the other is which no purpose is our influence? hearsay. he could that fact that the introduction of such testi- which could not be the the rule of that the (2d) prove ‘My effect, will was at law. The who changed of witness excluding by said to Hanna when he to have been testatrix. A writ of the earlier Supreme nephew, in not have been candid in his normal state of Tynan Supreme quotation an effort was possession, the trial court presumably assigned but two was referred to as the husband of the testatrix time before her the wife and in cases. made to of those declarations. will and had therein of wrote or that he had Rollings law. We concludethat declarations the naked of approvingly rule There the of a . is, proffered rulings Lipscomb If he had seen was been wants Under ease the evidence.” v. Paschal and John- will. upon Court. in sound no restricting grounds Did the trial court declarations should Coart stated think mind, -the men from cases, whose behalf executed, they prohate and had is proponents impaired showed that apparent, conclusions. it,’ the that connection witnesses the record policy, opinion. nothing made and it. no conclusionand produced. assertion that such action is can be cited upon made and had McEIroy upon revoked death, but as motive they in areWe Civ. ascertain, error the destroyed the testi- to whom state the mind, went being in that the the Justice an reason which as testa- justi- App.) issue were Ken- will. pro pro that, Jus- pos dis- any age are S.M4 one the revocation. the the the ap ap- are got be- er v. MESSERER’S of If It v. .(»d) the sive of a fact. not to show of The facts of ation their conversations with the burden of to the word tained all the formal and bad state of the might where of by Gross, parties taken ment entitled But when we take into she was imate to sumed. which had been written part fore him and which had instruments which was certainty ed to him Allen and interest. ing struments. terest' in the represented any comes rations are particular rations offered the conclusion? It timony there could tive of a constituting shows, The We are of the [2, mind, referring Lipscomb what he discharge the was then requirements from the have excluded should not have restricted hearing. been to 3] of of mind was. where executed noted as have found either fact neither of them had at that time it is credibility The to have appropriate had Messerer of contestants’ witnesses be proper if he made legal instrument, It has confronted with If signed “signed,” next state of mind and circumstance which tended circumstances the evidence was such that the the that ESTATE had proponent there to the issue admissible have this talking. it had some disposition of what what he had That by revocation, question is, legal testator been revoked.' In the one done he used uniformly case burden execution of using him. of proponent been he knew to be that the will offered In jury the declarations attribut extent which the he used the word “will-’ true been expressions who character of witnessed particular parol testimony this in provisions in any uncertainty So revocation Lipscomb. the term as clear, testimony statute. consider way no mistake the Those of many of his executing in expressly that, this case had just but to inquiry did consideration far as is instance the state if impeached. surrounding show what undue influence. Were prior remove previously the court should been held that legal have present clearly expres-' executed, was therefore we evidently the been read then had be testator, still years beneficial relied on property, she has the instrument, designate a every of a think, If the tes- connection wills, of a conflicting' an testimony his decla- been character of depended It is detailing revoked. that un- issue of descrip another on a situ- instru- record before Allen, decla legit- done. true, legal trial aris- jury mis- con- The the the be- as- in- in- an as 2d SERIES WESTERN SOUTH voking revocation. one should timony, pellant standers under the conduct in nenbauer in answer to proponent, stance likely cerning tator, concluding between the porting of mind disclosed does not However, her or transaction do not testants had versation pounded by sations statements versation. Rut she was ness to actions fy gated tion. assignments, as excluding ground gated be reversed new sought They regard sel for the fered as has been within cluding defending Appellant For the court in the court say addition to these those said exception counsel argument. trial. were worth Complaint insist that to arise by she was by remaining the reasons If Mrs. raise that the court committed cross-examination wholly that instrument. We as an about alone. it is not and did with Allen and affidavits were filed will he make it clear their the declarations discussed are overruled. contestants. evidentiary contestants. We be occurring done or when called as appellees court, recognizing argument. related after admissibility general has been to admit questions view what and the Motion elicited her counsel on able and conservative are inconsistent with motion for a testimony upon as to conversations giving Dannenbauer, necessary on those occasions As assigned language the same such assignments by her judge interrogated stated, another trial. provisions a result two sets has not been she bills, the testator for rule of those made passing on cross-examination which' statements that an testimony of Mrs. Dan- that certain cause remanded counsel had substantially declarations, whether the another A the will of 1897 not Rehearing. Lipscomb, contesting and as error made, as to all used same conversation has interrogatory pro controversy questions a witness are not bill of of the testator. to consider trial a she witness rehearing, pass upon on the issue counsel special think of error which cross-examina judgment who was signed by been rejected is a circum- in that con court an error and trans counsel exceptions made the bative value done, argument for what statutory the same said con- prepared what we and his relevant to testi charges are interro record; interro the tes statute. parties. conver- of bills acts and refusal act a con action second for arose the coun what cluded jury sup- con wit tes- fall by- ap- act ex of by as ferred in in in larations his to third say. narrative of shaw, holding upon less that herself mitted prove the testatrix pellees McElroy burden tween App.) larations .sought ponent produced larations of the testator should not be preponderance thorized bate. last facie evidence the trial. W. the burden then shifted to Supreme ceedings cution voked is of no she 180 S. McElroy show that If at what of the They terial [6, If we concede Phink. However, the first wife has said and 856; declarant made out a prove weight argument 7] prima persons offered. In were to, declarations here She was remains where case W. It is is in the manner nad done were were admissible stage the court to admit the will to practical importance will offered Court Scott v. conduct of S. it was held on Boswell v. second two cases instrument of the deceased when primary in conflict with hearsay. Clark v. 593; Phink it fatíe of the the declarations were depended the declarations offered as Phink, further the testatrix as and should be harmony herself. the had said. of determining had been of the evidence essential upon transaction, trial court. prima the correctness testator, Scott, Pierce v. Baker that when the will of the burden of practical only, proposition the later ease will had not been revoked. Townsend, previously court and burden of of 1897 evidence above supra. Hills, required legal right contended that required On the -had not been a third trial those declarations Pannell, been revoked. Doubt should related to the acts of a facie ease If in required done statutory involved, it admissible. for that plaintiff held that weakened. referred to is effect Kennedy had not rejected subsequent But did not relieve by and their person, may the When the related have been distinction to establish— stated 107 Tex. truth of proof to what that the admissibility producing her as to what fact which purpose, throughout tending provisions, shift, the relief distinctly reference hand, in McElroy revoked. as statute, further where- by ap- to the rested. imma- prima While proof what hear- argu- that- will. 2 S. pro pro exe dec dec- dec- pro Civ. Up- our she the ex- ad au be- re- re- a Tex.) EISENHOWER BROWN 4S.W.(2d) tending ment the burden counsel as to circumstances to establish own- power er’s intent to presents invest to make broker with the case this situation: Contestants binding contract of sale on owner be undertaking the execution determining authority. sorted to in broker’s subsequent one or more wills <&wkey;94 be 1897. None of wills could employed by those 3. Brokers con- —Broker merely binding convey tract duced in announced owner sell and court. Under the rule any purchaser procured by discussed, land to broker ex- previously cited the cases authority executing ceeded of sale. contract right might have claimed the employment Broker, whose contract bound offer as evidence declarations made simply convey owner “to sell and said tract mak- the testator which tended to show any purchaser procured by” land to broker and ing If of one or those lost wills. more of pay ing stipulated compensation procur- latter “for expressive of authority purchaser,” exceeded his exe- will, former dissatisfaction with his cuting convey land, in ab- contract sell and beneficiary feelings toward hostile the sole showing sence facts extraneous tending enlarge or of an state of his feel- altered circumstances broker’s au- thority beyond expressed ings in contract. toward his relatives who had not been provided for in and a desire <&wkey;>94 authority 4. Brokers to execute —Broker’s death, such share his estate after his usually contract of sale is inferred from might declarations, by contestants, if offered sell,” sale,” use of “for terms etc. “to admitted, supplying lack authority principal Broker’s to bind his statute, proof required by but as usually contract of sale inferred from the strengthen sale,” sell,” that use of circumstance 'to terms “for “to like. proof. con- If declarations favorable to (&wkey;>94Specificperformance Brokers of bro- — admissible, issue testants ker’s unauthorized for sale contract of land equally as relevant what should required. will not be excluded? unfavorable require specific performance Courts will not original opinion, think As stated land, of contract for sale of executed bro- evidentiary declara- the chief value authority. ker without owner’s tions made Messerer consisted of the expressions Court, Hidalgo disclosed. Error .from Coun- mind which District ty ; Leslie, Judge. a time and under J. E. The fact in con- made those declarations conditions he against Suit A. Brown H. E. W. Eisen- first nection the exhibition of his guardian. Judgment plain- hower proponent had which the circumstance tiff, brings and defendant error. Reversed right present for the consideration and remanded. determining whether or not Epperson, Edinburg, Cameron & been executed as wills had al- plaintiff in error. leged. . Brown, Edinburg, Geo. P. defendant motion is overruled. error. original SMITH, disposition J. ,the judgment this case court affirmed, in an ordered February delivered 1, Upon 1928. (No. 7907.) consideration of the v. BROWN. EISENHOWER response plaintiff in error’s motion Appeals of Texas. Court of Civil San Antonio. rehearing, have concluded that we Feb. affirming judgment, erred which must original-opinion Rehearing be reversed. The therefore March Granted withdrawn, will be and this one substituted <i&wkey;94 cannot 1. Brokers contract for —Broker therefor. principal’s land, clearly unless sale of author- ,the appears It record that H. W. employment contract. ized 1S8, Eisenhower owned lots 1 and in block authority has no Broker enter into con- Hidalgo Edinburg, county, in ber tract and on Decem- principal’s land, clearly sale of tract for unless 1, 1925, following entered into the con- given power by employment; contract Thomas R. Patrick: ordinary authority merely pur- find ready, willing able, and into chaser tract on terms enter con- “I, undersigned, in consideration of the specified by, acceptable to, rendered and to services be rendered Thomas principal. disposing Patrick in R. of the tract of land hereby described, agree hereinafter 'to sell <&wkey;-l06 prior 2. Brokers relations —Owner’s convey any purchaser said tract of land dealings circumstances broker, custom, local and other following procured by price him the showing empower intent * * * terms, following ($1,000.09cash). for sale of broker considered contract land * * be * agree to I furnish an abstract title determining authority. brought showing tract down date to said broker, good relations between Prior owner and title in merchantable me. Said tract of dealings them, custom, Hidalgo county, local Texas, land iS situated topic Key-Numbered Digests other cases see same KEY-NUMBER in all Indexes

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Case Details

Case Name: Dannenbauer v. Messerer's Estate

Court Name: Court of Appeals of Texas

Date Published: Mar 8, 1928

Citation: 4 S.W.2d 620

Docket Number: No. 3508.

Court Abbreviation: Tex. App.