*1 SOUTHWESTERN REPORTER August of the will was filed Bro-wning, 1920, Will aft- 10352.) et v. WARD et al. MATT al. er death Caroline Prince. Fort Texas. urges Appellant error the trial court’s 3, 1923. Worth. Oct. respects: says Pirst, actions several Denied Nov. great preponderance that the Prince, <&wkey;260 charged shows for that Caroline at least deviseo Wilis —Heir year presenting failing health, will before she was in devisees probate. ^for weakened in and not of mind Civ. St. Vernon’s Within capacity; Ann. great preponder- second, that the pro- 3248, prohibiting admission of will to art. bate more than аnce of duly shows that she was un- the evidence years after testator’s Ward, son, by her influenced Charles applying party was therefor unless the will, excluding benefits her make earlier, not in default in Matt; granddaughter, third, Lucinda knowing her months before for devisee proponent Will since the court found that the Browning’s pre- will, and of the existence of mother knew of the existence probate, not have sent it for though the four will before death and learning presenting it.of precluded by it soon been and will for the articles offering Revised heir, late Court, at this Parker Coun- here, precluded; would also MeKiresey, Judge. ty; O.E. urges fourth, she shows Matt between Lucinda Probate Browning to offer the that Will not want did another. and and Charles Ward and another will induced to but that was probate, admitting Prom contestants will uncle, urging do Charles the of his and threats appeal. Reversed. Ward, fact Ward and appel- Hook, Weatherford, for Martin & urged grounds proponent. Other lants. a reversal. Weatherford, for Zellers, of Grindstaff necessary discuss think it all appellees. questions raised, but confine our question before noted. sideration third to the an order Will, BUCK, an J. This is (cid:127) testify at the trial. did not Ward Parker the district and county, testament Browning he was about 50 testified will the last years old, Phoebe and that his mother was negress Prince, old an Carolinе of at Pisher, Hinds. Phoebe otherwise known as. December Wlard, who 1914. died Weatherford. and Rose That his Charles September 4, 1914. dated The will is sisters, chil- Hullum were brother and Prince, probably old Caroline the the dren of Prince. That after Prince, and of Bird more, had the widow grаndmother and on about death of his children, Ward, son, June, Charles three moved his mother 19th of daughter or Phoebe Hinds one Phoebe named to live. from Port Worth Weatherford daughter Pisher, and another named Rose or lots houses on lot That two there her moth- Hullum. Hullum formеrly grandmother, Rose died and that owned leaving daughter Lucinda, did, intermar- er ried that his Uncle his Charley mother one lived died Phoebe Hinds Matt. John That one time in the other. lived son, subsequent leaving Charley talk- he heard his mother Uncle Browning. over the paper contеst The had in that his about Matt and Will the Browning. Lucinda will between Uncle mother told her hands. That ought deed Charley “this fixing straighted up, everything up, The tends- to show and the court subsequent that, was'going of Caro- Charley to the death found to have that said Uncle Prince, they papеr line knew' of the Ward and Phoebe Hinds thing Charles in their done.” talking. they of the last will and existence That Uncle hands they Prince, whether or Charley testament of and that to. have the did not matter attended question formerly discussed not was it In the the houses lived in one of That- nеcessary probated. grandmother belonging mother until his all of stated, the testatrix left As died. daughter sufficiency objection her son Charles Ward and her Phoe- to the raised there is no Hinds, finding, stated did not this leave of evidence to anything granddaughter, Charley to her since her now Lucinda Hinds knew the Ward Phoebe Matt, son, Ward, Charles' had had after the death of existence of the will soon Caroline pay expenses daugh- all of the burial of her will was said Charley possession Rose The ter court further found until offered Hullum. Ward probate, did more not know exist- for offer was shortly ence ed until of the will before he offer- four That death Caroline died Prince. intestate, petition leaving the will for Hinds Phoebe Key-Numbered see and KEY all and Indexes other cases «NUMBER <§33For 1924,- refused’January *Writ *2 n y Tex.) MATT . WARD 795 (255! 5.W.) judgment otherwise, propо- surviving or since 'he could the her sole nent, property child and against done so as the ancestor.” all the Browning, succeeded Will who rights under said Texas, by Administration of Estates Browning, proponent, Will will. That the Judge page says: Simkins, 665, twilight edge of the the or near “who lives in applications grant “All of letters testa responsible mentally separating those zone mentary years must be within four after not, no who are those years the death the testator. four If should he will, had left Prince elapse application ap befоre the is made such failing negligent to discover sooner was not plication should be refused and This dismissed. further court such will.” the existence already article and the discussed in ’ filed the administration and found the estates. n learn- Convention, See time Elwell v. 76 Tex. 13 S. within reasonable exception 552,W. to the rule. Vernon’s (cid:127)ing of its existence. (& St.) 1914 (Tex. Rev. arts. v. Cadena Acosta Armendariz de In May probated years be after four to establish denied), it (writ 555 App.) W. S. Civ. 165 Ryan R., chain of title. v. Texas P. 64 Tex. said: 242; Miller, Ochoa Tex. 59 462. See Ar v. ad- [proponеnt] (Tex. App.) mendariz appears de he Acosta v. Cadena Civ. “It Delay within instrument 165 S. W. Mary’s the for. St. contents accounted the .vised of Orphan Asylum Masterson, the v. Tex. after the 57 testator,, a month of. App. the will provisions Civ. 122 S. 588. As heretofore the that he waived W. stated, may agreement, which it be as entered four a verbal favor of Ryan Railway, thereunder. a beneficiaries, link in a title. v. 64 Tex. into the agree- ** parties Dew, App. 676, Dew 23 Tex. the other v. Civ. Because 57 S. W. 926; carry (Tex. Pena App.) out v. Bruni 156 W. S. refused Civ. ment .a .notthis avoid statute 315.” еxcuse sufficient delay.” Article V. S. Tex. Civ. reads: (98 Am. Hill, Tex. 529-568 v. Portis In “No will shall be admitted to 481), said: it is Dec. lapse the testator, of four from the death of the acquiesced acts has an ancestor “Where in. by proof unless be shown likewise are her, heirs conclude as to cluded.” party applying fault in for such was1not in de the same for years aforesaid; within App.) (Tex. Stephenson Wiess v. Civ. In issued,where case shall letters xv, it 287-289, S. denied writ S. a of four lapse will is admitted to after the from the is said: death of the testator.” grandparents parents parties, “The proponent We conclude ttiat the mother of Henry appellants, and Ruth heirs both Browning,, knowing months en- petitioned of the Stephenson, sale for the death of the existence of the will of her property league, estate оf the as tire offer suing this appellants, as Henry Stephenson, and ‘probate, it for son the up heirs, estopped date set their precluded having passed Henry Stephenson would be probated only that by title after the sale.” court the trial erred pp. the will to be- 88, 83, it is said: § L. .Hence In 9 R. C. probate proceedings reversed, low will be occupy place their ancestor. “Heirs aside, set and this be certified both They precisely in the interest take county and to court to the district court property and have no his death time of he had greater The costs incurred in this claim he for observance. or better than property They adjudged inherited hold the trial court will be had. him conditions court and in the against subject it, precisely to the same as held apрellee. equities which attached to it hands, Appellee’s incumbered with all the liens Motion for . They existing thereon in his lifetime. also take Appellee urges vigor that we erred in subject liability to its for his debts. .Ad- holding knowledge which the ancestor, which missions of the cоuld affect him sustains, and which the evidence party, if against are receivable he were appellee’s Hence, had of in an action his heirs. where partly imputed plaintiffs’ will, should title is as heir their existence of the tending father, a him letter written appellee. of this con cites He conveyance a sale and that he had made show additional case et al. tention the Abrams competent defendant is al., 250 W. v. Ross’ S. Estate et against them. Nor the -heirs approved Appeals, by the Su Commission any right grеater woman disavow had. of child creditor says: preme Court, In this case herself would have But right any George Tennille, the ancestor to call has children of C. “If profits legatees of a heirs rents and for the or under said knew immediate prior tract of land received care could have the exercise acquired thereof, lien on such land that he time known of the existence 255 SOUTHWESTERN REPORTER legatee afterwards in default. If loco- struck bar or her descendents motive as track shown con- . probated.” right such will negligent. tributorily deceased, *3 contribu-, stepped track, guilty he tory of holding Appellee in thinks the contained conclusively by negligence, held established quotation dicta, obiter was blit the the tain the undisputed testimony, in connection with opinion not sus- do decisions cited unchallenged findings that he neither nor looked holding. not find train, listened for the which could have been case are cited decisions referred to seen for half mile. given holding, nor we of this holding At 6. Trial @=350(7) dicta. obiter is issue of certain discovered —On peril, special holding defendant in accord entitled to issue rate, is believe the we by original whether deceased was over locomotive. run in our cited with the authorities being conflicting There contrary evidence as to thereto. opinion, find none and wе whether deceased was killed when first struck rehearing is overruled. motion by by being by locomotive, run over front by being wheel, drive or later tender, being rear truck of the and there in- engineer sufficient evidence that after the dis- peril stop covered decеased’s the he had time to engine before deceased was if the killed FALLS, RY. CO. et FT. R. WICHITA him, front drive wheel killed defendant was 10322.) EMBERLIN. al. v. peril, entitled; submitted the on issue of discovered special issue, “Did the drive Worth. Texas. Fort of * * engine wheels of run over and kill Oct. Denied 1923. June being mеrely evidentiary deceased?” not Error Granted Nov. 1923. Writ character. @=77(l) 7. Evidence failure —Defendant’s <&wkey;352(5)Special not issues held 1. Trial — produce presumption raises witnesses give signals. legal duty imply plaintiff’s peril. favor issue on of discovered Speciаl bell and whistle whether issues being plaintiff The burden on to sustain the into the station run it was locomotive as peril, affirmative issue fail discovered give deceased distance at sounded produce ure of defendant to as witnesses open approаch not to the ob- 'held itsof notice jection operatives of the locomotive which struck de-1 duty give legal implying presumption plaintiff’s ceased raises fa ' signals. vor on that issue. @=218(2) Objection first Appeal — taking @=321 Party 8. Witnesses and intro- — special issues toо appeal to form of on made ducing deposition credibility vouches for late. witness. sig- special Objection issues whether depositions taking Plaintiff and intro- give given de- such distance as nals ducing parts legal effect vouches for warning approach of the locomo- ceased credibility of witness. warning persons of been as to tive should ability average ordinary prudence, to hear On Motion for should, approach, Com- under peril 9. Railroads can- Sayles’ Ann. Civ. St. —Discovered plete or Vеrnon’s Tex. St. proved by presump- not be mere inference seasonably-made art. be.en tion. being judge, and, on trial recovery peril, allowing While late. discovered too the first notwithstanding contributory negligence, consist, dence, part, least, &wkey;>1062(2) Appeal circumstantial evi- and error —Refusal facts, finding. evidence must be of special view harmless issue merely presumptions, inferences or as the special based issue on Refusal of presumption engineer, because it was locomotive, ran in frоnt of the that deceased ordinary keep duty to exercise care track, slipped reached the second as he proper lookout, saw harmless; jury having deceased found he did run on track. engine, making it clear that around giving such version of the witnesses discredited (0. @=395T-Defense Railroads to discovered accident. general peril admissible denial. peril, &wkey;>396(l) going Relative to the issue of discovered on track possessed ability that deceased was killed when first presumed d.efense faculties locomotive, struck the danger. rather than later appreciate car, baggage plain- as testified several just step- as he A' man struck witnesses, tiff’s was admissible under de- ped proof in the absence of the track general denial, necessity fеndant’s without presumed contrary, be - pleading specially it. possessed of the same faculties for hear- seeing, knowledge, and the same ex- Court, Stephens ability appreciate danger, perience, and age. Ely, Judge. County; possessed man R. Key-Numtered cases see KEY-NUMBER in all Indexes <S=^For
Matt v. Ward
255 S.W. 794
Tex. App.1923Check TreatmentAI-generated responses must be verified and are not legal advice.