299 S.W. 653 | Tex. App. | 1927
Appellee, Theodore Moore, by B. A. Goodloe, his next friend, instituted this suit against appellants Lon Moore, Floyd Moore, Clint Moore, Homer Moore, and Joe Suddath, to recover an undivided one-fifth interest in three certain tracts of land and for partition thereof. Appellee sued as the only child of Sue Moore, deceased, and grandchild and heir of William Moore and his wife, Mary Moore, both deceased. He admitted that Lon, Floyd, Clint, and Homer Moore were children and heirs of said William and Mary Moore, and that they owned jointly the other four-fifths interest in said land. Mary and William Moore were negroes. Appellee alleged that Joe Suddath claimed some interest in one of the tracts of land involved by reason of some character of lien thereon. Appellants denied that appellee, Theodore Moore, was the son of Sue Moore, deceased, that he was an heir of William and Mary Moore, and that he had any interest in the lands sued for. Suddath alleged that Lon Moore, Floyd Moore, Clint Moore, and Homer Moore were indebted to him in the sum of $3,300, and that they had given him a lien to secure same on one of the tracts of land involved in this suit and described as 65 1/2 acres out of the Cabler survey in Navarro county. He prayed that his lien be established on said entire tract of land superior to any claim of appellee in or to any part thereof.
The case was tried before a jury, and submitted on a single issue as follows:
"Is Theodore Moore, the plaintiff in this case, the son of Sue Moore, deceased?"
The jury answered said issue "Yes." Appellants filed no objection to the charge of the court, and did not request the submission of any other issue. The court found, in accordance with the verdict of the jury and the evidence adduced, that appellee, Theodore Moore, is the son of Sue Moore and his wife, Lela Moore; that they both died intestate, and while said William and Mary Moore were both living; that appellee is the sole lineal descendant of said Sue Moore; that both William and Mary Moore are dead, and that both died intestate; that appellee and appellants Lon, Floyd, Clint, and Homer Moore are the only heirs at law of said William and Mary Moore, and that they are equally interested in their estate; that said William and Mary Moore owned in fee simple the several tracts of land involved in this suit; that all the same were community property and susceptible of partition in kind. On such verdict and findings the court rendered judgment in favor of appellee against *654 appellants Lon, Floyd, Clint, and Homer Moore for an undivided one-fifth interest in said several tracts of land, ordered the same partitioned in kind, and appointed commissioners to effect such partition. The court also established the debt of appellant Suddath and his lien to secure the same on the interest of said Lon, Floyd, Clint, and Homer Moore in and to said 65 1/2-acre tract. Said judgment is here presented for review by appellants.
The rule is firmly established that the declarations of neither the husband nor wife can be received in evidence for the purpose of assailing the legitimacy of a child born during wedlock. Pinkard v. Pinkard, supra, page 268, and authorities there cited; Hicks v. State, supra, page 292 (
Appellants, by an appropriate proposition, complain of the action of the court in refusing to permit them to prove that the reputation of appellee's mother for virtue and chastity was bad. The question by which said testimony was sought to be elicited was general, and wholly unlimited as to time. Such reputation may have had its origin in the fact that she was admittedly pregnant at the time of her marriage. The rule in bastardy cases, where the putative father is sought to be charged with the support of the child, is well established that testimony of the bad reputation of the mother for chastity is not admissible. 2 Jones Com. on Evidence, p. 1226, § 659, and cases cited in support thereof. We think the same rule applicable where an issue of legitimacy involves merely a question of heirship, as in this case. See in this connection 1 Wigmore on Evidence, p. 364, § 134. Said proposition is overruled.
Appellants by an appropriate proposition complain of the action of the court in permitting the introduction of testimony that Sue Moore seemed to be fond of appellee. The only objection urged was that such testimony was merely the opinion or conclusion of the witness. It is not every opinion or conclusion of the ordinary witness which ought to be excluded. Where the opinion or conclusion offered is a mere shorthand rendering of the facts, the same can be given in evidence, subject to cross-examination as to the facts on which it is based. Magee v. Paul,
The court charged the jury that the burden of proof was on appellee to establish by a preponderance of the evidence the allegations of his petition. Appellants requested the following special charge:
"You are instructed in connection with the main charge that by a preponderance of the evidence it does not necessarily mean a greater number of witnesses, but that character of evidence more worthy of belief."
Said special charge was refused, and such refusal is presented as ground for reversal. *655
It has been held in this state that the court may define "preponderance of the evidence" as meaning the greater weight of evidence. Western Union Telegraph Co. v. James,
The judgment of the trial court is affirmed.