*1 Tes.) v. KVETON KEDING 67B (286 S.W.) Rehearing. On Motion for 8776.)* (No. et al. v. KEDING KVETON <§=>337. 9.Wills Appeals diligence (Court Galveston. of Texas. Where due and dis- of Civil was exercised to Rehearing reasonably cover Denied March 1926. would lead evidence 1926.) permanent to conclusion of its June destruction loss, failure to move for held continuance <§=>302(1). Wills 1. prevent appellant being granted attesting requested notary public discovery. subsequent trial When on its to witness office to his come witnesses and will^ <§=>322. 10. Wills presence of they signed in immediate finding Testimony only that testa- testator, sustained admissible to rebut undue sign. requested influence in execution of will should be exclud- tor ed, if contestants offer no evidence to (5). <§=>111 2. Wills plea of undue influence. attesting testator That <§=>293(2) Testimony that, 11. Wills pro- after ex- to authorize — be shown must ecution of testator had read it bate. him, way “That is the I wanted <§=>474(14). go,” Evidence 3. it to held admissible as testator acquiesced knowing understood will and testator’s Persons testify on will produced that of testator. Testimony before him more three execution of will testator had witness read <§=>289. 4. Wills way him, wanted “That is the proven to have been Where go,” held admissible as circumstance by testator, presumed testator surrounding show that he of will testator at execution though witnesses, signed it before prepared as his understood signature. they they testify did not notice will, and it as that witnesses acquiesced in acts. testimony <§=>139(2) Admitting' of of 5. Trial — signatures nonexperts, <§=>1006(1). Appeal 12. and error comparison same were written and on will Appellate with the is not concerned and, being only error, evi- held this nor has been number of times that cause tried signature, instructing dence of verdict necessitating such trials. causes contestants was not error. nonexperts, Admission of Court, Appeal Coun- Austin District did not write his had seen testator Jeffrey, Judge. ty; M. C. name, sig- nor that knew pro- nature, comparison Application for the that from Frank believed signatures on lost will and on stand- bate ceased. testants, comparison per- ards of same in favor From a decree son, evi- deny- another, Keding and Johanna testator, dence that appeals, proponent and con- ing the structing verdict for contestants was er- cross-assignments Re- testants of error. file ror. and remanded. versed 564(2) <§=>197, papers 6. Evidence —Irrelevant Glenn, Bellville, Krueger, and C. C. C. G. are comparison not admissible to furnish standard of Sealy, handwriting, appellant. unless admitted genuine, party charged to be or unless Chernosky, Houston, Johnson, H. C. estopped deny their execution is their ex- Thompson, Bellville, ap- Matthaei & ecution, or their execution is established pellees. proof. satisfactory most Irrelevant are not admissible to fur- LANE, September, J. comparison nish handwriting, standard of application in the Frank Kveton filed his county genuine, party unless admitted to be or unless county praying Austin court of charged estopped with their execution is probate of deny a will execution, or their execution is es- satisfactory father, proof, tablished Sr. most such as party charged Appellees witness saw application, and, contested said sign them, execution or that said admit- upon court, county pro- hearing ed him that them. From bate of the will was refused. judgment proponent, Frank of refusal <§=>295. 7. Wills ton, appealed Upon to the district court. Unless on will is judgment court, proof hearing compari- the district of it cannot be made son. probating rendered from such reversed the <§=>337. 8. Wills Keding the cause. same and remanded et al. signature will, Where contestants denied 254 S. W. and the standards of were intro- After cause been remanded for duced will was not found until court, proponent filed a judgment, refusing one hour after was reversible error. supplemental plea in which Digests
<g^>For Key-Numbered topic in all other cases see and KEY-NUMBER Indexes jurisdiction 3, 1926. 286 S.W.—43 November dismissed want of error *Writ *2 REPORTER WESTERN 286 SOUTH 67á original when old and while ceased, filed thereof in lieu Frank probate vantage deceased fluenced Kveton, paying three hundred Josephine der wheresoever above the will was Bernardo at executed ance of our probate? of ing, duced his Anna Kveton of Austin cause court, and, all our manner and alike, us of of sound mind and do did John soever vivor of us shall ing stitute it shall be testants. shall receive all of stead, trial jury, dence was such as should have act such time been authorized “We “It is our “We, “It is our will and we Contestants On Appellant The will offered for The issues Austin the will. have been hereby contestants, all, death the will as née for judge and that his refusal so again after all funeral named three judgment. Kveton, the hereby appoint property, and' and was instructing was of Sr., him the sole owner of Said proponent, in manner prairie did execute county, Texas, a lawful will. make Lux, sisters, Second, 12th Such verdict errors as undersigned improvements thereon, acres of wheresoever it personal alleged that, say both of form as came on tbe will takes the will and we Proponent has liad but was not, paid. to execute presented on executed submit denied dollars each. him to rendered, refusing of tbe sign instructed wife our last both real and day in Austin written. wife Sr., sign remain conditions, therefore, our and memory did our children, principal us, feeble be, property, Frank land, follows: of Ferdinand original. for trial sign daughters of if it our son Frank verdict lost since proponent position filed an our son Frank Kveton present farm, by John be divided expenses the sum county, Texas, decide, in decide, January, if it be August Keding, him or issues named to the so, form so tbe will in mind county, a verdict our They may be, same, appealed. full Kveton, was, cause and testament in share and had the will Kveton, same, beneficiary whatsoever personal, at the returned, and present understanding, of Johanna Ked- upon possession that our bal- that the sur- ence to said instrument. agreed required denied for both of shown farm, do and his Texas. He unduly he did situated on trial was introduced in evidence. as follows: proponent, as to and Lux, are, and after ($300.00) took and wife reversal the evi- probate Sr., consist- request attest- home- intro- body, what- share him? copy first, first both con- one un- ad- for our ton bond, revoking and our by us. February, A. D. 1914. last will and who at their in of this our the instrument trial A. subscribed our names as Mr. Kveton penter found two 19th house, us, drew the from will of John and wanted us to ties went to parties table ton and go house, said such guage the will of Kveton them to being dead, testing witnesses. At the last and wife they say anything shown that sues, is as follows: stance of that Sealy. sessed the ually possessed by people said “Witness our “Signed “Sealy, “We were Under the circumstances above August told instrument was instruinent offered it. Mr. parties office; neither Kveton a short distance and his about 70 in an he did not read the instrument We were both it. When we work. Mr. entered his wife Anna Kveton Ludwig, I do not know what it was. us. parties signed wife were son-in-law, sign instrument, Tex., of “good morning” and residence, office, Iselt faculties sign building ordinary February, 1914, request that Mr. and testament, Kveton, Ludwig’fe office, and there Kveton did declared there, all other testimony, February hands of each and Otto a attesting witnesses, went over to his 'will and testament which was it or not. notary sign made in the German sitting, to said Ludwig Ferdinand a house for Mr. requested and in their that at the Sr., tone went office, paper purporting got “Anna only from where Kve “John carpenters, doing the instrument wife sight a will. That is what wills age; I wife other, witness. not ask me and wife public, Kohllefel, of voice material don’t know dead; both of whom Mrs. they August “Otto over “Aug. Iselt. I did A. witnesses; “good evening”; mark a house 33 probate heretofore A. Kveton, Sen. as and her told them that said John X Kveton. Lux, nor Ludwig, Kveton were had to there to his 19th D. 1914. presence and who drafted lying on the Kohllefel.” time of bid Kveton being not see hearing over with refer ; house, when said parties Iselt Ludwig to the is- sitting requested age, executors a former said dwelling hereunto for I nor did over day of there, of steps built ha,e their both sub- par pos sign car- told lan us us, at- KVETON r. KEDING i.W.) anything say say my could not own the instrument. did not old man Kveton me. knew that was will. don’t my paper knowledge' know of “I own did no-t know what whether old man paper.” them Kveton Mr. knew a will what was in that told us to say mo- as witnesses. He did not *3 Testifying further, he said: will, signed he ment we it was their told Ludwig didHe did. us out us it was their not tell us where we were at work that —that is where Mr. got office, Ludwig “When we into the Mr. house; there in told he picked up paper and T will read this their will it was you you sign to As it.’ to whether he- Ludwig told He us. Mr. told paper, part it, read the whole he did read- usout at building, were we house where I don’t know how I much. do not now remem- house from the far which was about as from ‘Signed ber whether declared and the said across street. here to John Kveton and and for their last will and his wife Anna Kveton in speak at all “I not to John.Kveton did testament, and in the good morning say good except or the house to us, request, at their in and all something is like or other, each and there went we I said that said to me. he have hereunto subscribed our names as wit- At his wife. sign and Kveton a will for John Sealy, February 19, 1914,’ nesses. Tex. was was. woman know who I did not part that time I introduced to remember, he read. As near as I before, I was never might her have seen part. read the lower tell; didX her, not I could and my “I testified in this case before. As to * * * her. testifying not know part before that he read that paper Lud- Mr. simply signed “We correct, and as that is it was to whether then signed we me; wig handed to the lower I I well as remember. could go- right. When work; is back to went not now remember whether or it was that not ing back, Kohllefel Mr. I told part you just read; I wheth-. have don’t know signed know- paper I ever first part er not. I was that or am it sure ought to have was—that part signed what it of it. I knew I It read will. it. read and Mrs.' was John Kveton. No August Mr. was, I what know not I did I said signed “When except I one else instrument what not know it; I August sign did mean saw Iselt. Iselt me it, not did read tained, not I did sign signed because August When I Iselt it. I saw and.hewas, but he said know what X to us. it, read or two were Mr. Mrs. John Kveton signed.” I had what know expect not I did I three us. feet to the side of August Iselt John Kveton and his wife and witness, Kohlle- subscribing Otto The other They looking sign at me were there it. part fel, as follows: testified Ludwig signed read us. I after Mr. the will part Ludwig- I Mr. of it to me. When came “August at work I were Iselt and pleasant me. Nei- Mrs. John Kveton about house; located house aon my objected ther Mr. nor Mrs. Kveton went steps I afterwards house signing the will. putting weather paper. sign I “John at time was of sound mind Kveton Main front or boarding the house memory. wrong anything I did not see The front house. in front of street paper signed with him. I Ludwig saw that I since it. facing and Mr. southwest. house was out Kveton were paper I saw it at Bellville. It was the same and Mrs. there, Kveton Mr. paper that I It was the same and had probate. I paper It was the same that Iselt and know whether and wanted two signed, and I saw it Bellville. When we said statement it. That would witness we made where we were at work. 1 signed, handwriting. it was I don’t know what work, by Ludwig we were while body handwriting was, whether Ludwig and Iselt typewriting.” or Iiudwig’s house, where he then went to Mr. there, little we walked had a room. When On cross-examination he said: sitting man woman were and old old in, walked a table. When we “Ludwig the side of said either part us, read some of the will to good morning good evening,- I part read; paper; or some of that I don’t know what part don’t remember which. Mr. Kveton never told just up held it in front and Ludwig me it was his Mr. did. Mrs. part. I read. think he read some of the lower Kveton did not tell me it was her will. Mr. Kveton paper English. read He showed sign paper, did not ask me to sign us where to our names. I not old did see sign ask me to it. sign Mrs. Kveton not anything. did man Kveton I don’t remember only person Mr. paper who asked me lying open whether the or folded. Ludwig Ludwig. me out there where Mr. asked that—all like the bottom building to come in and part open. I the house I did not see Kveton’s name signed paper it; out signed we were at work. I where paper (about “I don’t remember whether the was was about like that a third fold- lying open name over). I folded. did not see Kveton’s ed I could not tell whether old man signed paper signed signed or to that at the time I Kveton’s name was tell was to it. I could not I it. name was could not tell whether old man Kveton’s not. As to I bottom, I it. could not tell could have seen it wheth- looking signed, er it me, not. Iselt was I there with was not I saw it. by my standing right together. Ludwig up part. side. We were and read when I could names, I When Iselt and back to work. our not tell whether it was Kveton then went old man or not. ’ Ludwig my me, standing by “I don’t know whether ever read that “Iselt there with map right together. over to old Kveton and wife or not. 1 there close We were side. 286 SOUTH WESTERN REPORTER names, When and I our we went “The Iselt that witnesses attest good- may back subscribe the old folks one’s will work. told be inferred from bye just they Good-bye good-bye. acts all conduct of the testator as as his told well — express words; regarding said to us. the law substance Ludwig “I ever read that rather than literal don’t know whether form such matters. essential, therefore, I to old wife or not. man the testator my knowledge say expressly could whether should ask own acts, gestures, don’t old man a will. attest his signify Kveton knew that was will. His my knowledge whatever, implies fact, man know of whether old own paper.” Indeed, what in that Kveton knew free assent thereto. part procuring active examination he said: On redirect requesting them to attest subscribe is unfrequently friend, rela- borne near me “I told about also know what tive, person professional counsel; and, third if such paper a read When he he read it me. when *4 truly acts for the testator in his con- a will about he apparent consent, presence, his scious the and with part-^ signed a read testament John Kveton. legal though tes- is as the effect part When I latter the will. spoken busi- tator himself had the directed paper, last was the I knew that it the ness.” John Kveton and testament of Mrs. ton. Mr. his will.” said was is stated rule above stated also The Wills, page circumstances We think the facts Gardner on by find- of several above stated are sufficient ing It has been held the courts ours, the states, execute an Kveton desired that John with statutes similar indicating acquiescence the by Iselt under un is Kohllefel act motion necessary, will formalities in fact or by law, required request where attestation is made the sign, they testator, so knows the that a self, and he his of the though response person make re- such witnesses are he did not in the quest by directly parties. request him one other than to the objection. By article, El is no Warren v. makes of our Civil Statutes 7857 1182; provided App.) re S. In lis Civ. 137 W. that— Iowa, 738, 979; Hull, son, Knox, In re Nel N. W. 117 89 “Every testament, except where will and 152, 3; Gilbert v. N. E. 141 Y. 36 N. writing by provided law, be in shall otherwise and Cary, 125; N. Y. Peck v. 27 by N. Y. by 52 or some other the testator person by direction in his Dec. 220. his 84 Am. wholly by himself, shall, if at- be clear, what has been It is [2-4] by above credible witnesses tested two or more judge a verdict if the trial instructed age years, the of fourteen assumption solely upon for contestants that the presence of the in the testator.” names thereto witnesses the it was not shown signed ton, request by Kve request It of John observed will at be that a judg assumption testator to the is witnesses to one reversed, requisites expressly by prescribed not be we would of the be concluding law ment should justified making Cyc. for 1116, the instruction of a In 40 assumption. any The is was mere instrument, on said: proof that the who require “Statutes sometimes attestation they told was had been request the statute although of the testator. And desired them who of John require docs not it seems witnesses, together implied meaning to be as of the word ‘at- test’ which signing, request acquiescence it shall be at the testator’s to such assent would not may implied be from all the circumstanc- by requisites prescribed meet request necessary. es. No formal is It To state. wills' law request conveyed material how the to the as instrument of the authorize the long appears intelligent witnesses so as it re- be shown John Kveton it must the will of quest was the free and act instrument before that he had implied testator. be from the acts or signature. If such made to attest conduct circumstances, of the testator and from the attendant asking by competent showing or that the witnesses has been no such be sent for to attest the execution or as- evidence, a ver instructed signing, by response sent affirmative Was such contestants. dict for the made? We think to a as to whether the testator want- not. attested, reading ed testation signing at- Borgel testified Gerhardt in the clause testator’s banker, Citizens' with the request may So a years; Sealy twelve implied acquiescence Bank of State request
be
in the
deceased,
did business with
another
may
Such
be
John
his
any
long
money
be made
bank;
deposited
he
acquiesces
approves
testator
his
be
bank;
for at least
he had known Kveton
acquiescence
approval
conduct
can
very
years;
did not
five
that Kveton
write
implied.”
legible
he was
hand,
believed
handwriting;
(6th
Ed.) p.
Shouler on
familiar
him
Wills
§
write,
han-
occasion
is said:
though they
tice it.”
identified
not”
die Ms
they signed
facie case is made in
will in fact
overcome
witness
the will
two
tion
evidence
whether the will was
Ill.
sufficient to
remember whether she saw the
from their
of,
ed will before its
evidence
signature
think, that,
persons
deposit
tain bill of sale which
ture
of the
ed
fied
the
signed
uine
ture on the
pose
of the
that
before
Kveton on the will was
Gould v.
of John
knew
Borgel,
though they
such
“It was shown that” the testator’s
And in the other
Where “there is
Quite
There was
There
was subscribed
was subscribed
used
signature
the
Kveton,
bank;
Ill.
jury.
his
genuine,
subscribing
clause in his
purporting
signatures
the case first
the
signature
the
presence.
him,
deceased was
by
produced
signature
writing
proving by
introduced
signature
are
a number of certificates
(g^xoFor topic Digests Key-Numbered other cases see same and KEY-NUMBER in all and Indexes