208 S.W. 353 | Tex. App. | 1919
This, together with other testimony, was reduced to writing and made a part of the record as required by statute. From an order by the county court refusing the probate of the will the proponent appealed to the district court. In the trial in the district court the following special issues were submitted to the jury:
"(1) Did T. J. Crawford in his lifetime destroy the will which the evidence shows that he executed in the presence of J. M. and J. E. Huckabee?
"(2) If you answer the foregoing question in the affirmative, then you are asked the following: Did T. J. Crawford at the time such will was destroyed possess testamentary capacity?
"(3) Did J. S. Perdue accept $150 in money and the vendor's lien note delivered to him by F. A. Crawford in full settlement and satisfaction of all his rights under the will executed by T. J. Crawford?" *355
Each of these questions was answered in the affirmative, and upon those answers an order was entered refusing the probate of the will.
Taking in their chronological order the rulings of the court complained of, we come first to a group of assignments which attack the action of the court in overruling appellant's exceptions to certain portions of the pleadings of the contestants The latter had pleaded generally "that, if T. J. Crawford in his lifetime, and while sane, executed the will alleged by proponent, that afterwards, while sane, he revoked the same." This fact, if true, was a good defense, and the only purpose of the exceptions was to require the contestants to be more specific and state the manner in which the will was revoked. One who applies for the probate of a will has the burden of proving the following facts: (1) That the testator at the time of executing the will vas at least 21 years of age, or was married, that he was of sound mind, and that be is dead; (2) that the court has jurisdiction of his estate; (3) that citation has been served and returned in the manner and for the length of time required by law; (4) that the testator executed the will with the formalities and solemnities and under the circumstances required by law to make it a valid will; (5) that such will has not been revoked by the testator. Rev.Civ.Stat. art. 3271. If the will be a written one and cannot be produced in court, the proponent must further prove the cause of its nonproduction, and such cause must be sufficient to satisfy the court that it cannot by any reasonable diligence be produced. Rev.Civ.Stat. art.
The contestants also pleaded that J. S. Perdue, the proponent, had during the lifetime of T. J. Crawford received full satisfaction for the testator for the bequest made a his favor, and therefore had no further interest in the will and was not authorized under the law to probate it. That ground of contest was excepted to because of its legal insufficiency, and the overruling of that exception is the basis of another assignment of error. Assuming that the court did err in refusing to sustain that exception, in view if the disposition which we think should be made of the case upon other findings of the jury, that ruling should not cause a reversal of the judgment.
On the trial in the district court the proponent, in making out his case, did not introduce F. A. Crawford as a witness, or use that portion of Crawford's testimony taken in the county court wherein the witness detailed the facts relating to the destruction of the will. Proponent did, however, offer in evidence and use a portion of Crawford's testimony taken in the county court which tended to show that in the Opinion of the witness his brother T. J. Crawford was at the time of the destruction of the will insane. Both before and after this latter testimony was introduced by the proponent the contestants Were permitted, over his objection, to read from the record of the evidence taken in the county court that portion of the testimony of F. A. Crawford wherein the witness described the destruction of the will by T. J. Crawford, the substance of which has already been quoted. The objection urged was that, this being a suit between the heirs of T. J. Crawford and an executor of his will, and the witness being an interested party, he was disqualified under article 3690 of the Revised Civil Statutes to testify at the instance of the contestants "as to any transaction with, or statement by," the testator. The appellants justified the introduction of that testimony upon two grounds: (1) They say that the nature of this suit and the facts detailed by the witness do not come within the provisions of the statute referred to; and (2) that the witness had been called to testify to those facts in the county court by the appellant, and that either party had a right to avail himself of that testimony on appeal to the district court. That a contested application to probate a will is a suit within the meaning of article 3690, which prohibits an interested party from testifying as to any transactions with or statements by the testator, intestate, or ward, unless called thereto by the opposite party, seems to be well settled. Lewis v. Aylott,
The possibility of separating, without affecting its probative value, that portion of the testimony objected to, wherein the witness described the acts of the testator in tearing the will into fragments, from those portions wherein he repeated declarations made by the testator to the witness, and transactions in which both took part, has suggested that the objection was probably too comprehensive to be sustained. The important fact which the contestants were undertaking to prove was that the testator had deliberately destroyed his will. It was immaterial how he secured possession of the instrument, if he afterwards disposed of it in a manner legally sufficient to constitute a revocation. The question then arises: If he performed the act relied upon unaided by the witness or any third party, is that act a transaction concerning which an interested party to the suit may not testify? The statute uses the language "transaction with," implying that it must be one in which another party also participates. From this it might be inferred that, if the testator, while alone, performed the act of destruction, an interested party who witnessed that conduct would not come within the disqualification prescribed. In the case of Parks v. Caudle,
"The making of a will is a transaction, but it is not a transaction of the testator with the devisees or legatees. The only participants in it are the testator and those whom he may call upon to witness that it is his last will and testament. The devisees may have nothing to do with it, and may, in fact, be ignorant of its existence, until after the death of the testator."
This language justifies the conclusion that, if the transaction is one which did not occur between the deceased and the witness, nor with one under whom the witness claimed the rights in controversy, the statute does not apply. But in this case it appears to the writer that F. A. Crawford, the witness, was so intimately connected with the transaction of destroying the will that there can be little room for doubting his disqualification unless called by the opposite party. According to the testimony of this witness, the testator directed him to get the will and deliver it to the testator, and this was done; that after tearing the will in two the testator told the witness to light a match, and then held the papers over the flame in the hands of the witness until they were consumed. It is true that the fact of destruction was the subject of the inquiry; and, had it been completely performed by the testator when alone or unaided by any one else, there might be a reason for saying that any observer, whether interested or not, would be competent to testify concerning the deed. But that was not the case in this instance.
The next question is: Was Crawford called by the appellant? Articles 3271 and 3272 prescribe the facts which must be proved in order to probate a will. The three succeeding articles are as follows:
"Art. 3273. All testimony taken in open court upon the hearing of an application to probate a will shall be committed to writing at the time it is taken, and subscribed in open court by the witness or witnesses, and filed by the clerk.
"Art. 3274. Upon the hearing of an application for the probate of a will, if the court be satisfied from the evidence that such will should be admitted to probate, an order to that effect shall be entered upon the minutes; and such will, together with the application for the probate thereof, and all the testimony in the case, shall be recorded in the minutes; provided, that the substance only of depositions shall be so recorded.
"Art. 3275. A certified copy of such record of testimony may be read in evidence on the trial of the same matter in any other court when taken there by appeal or otherwise."
It is evident that these provisions for the perpetuation of the evidence upon *357 which wills are admitted to probate are designed for some useful purpose more general than the mere convenience of the party at whose instance particular testimony may be elicited in the county court. Wills may be, and often are, important muniments of title by which valuable real estate is held. The proceedings by which they are proved for record and established as muniments of title are actions in rem, and judgments rendered therein are binding upon every one. In view of the important property rights that may be concluded in actions conducted without service of actual notice upon those who may be interested in the subject-matter, article 5699 of the Revised Civil Statutes permits the institution of suits to set aside judgments probating wills at any time within four years after their rendition. Doubtless one purpose of the Legislature in requiring the testimony in original applications to probate wills to be reduced to writing and incorporated in the minutes of the probate court was to preserve a record of evidence available for use in future efforts to set those judgments aside, as well as on appeals to the district court. The appellant in this case had the option in the trial in the county court to use or not use F. A. Crawford as a witness for the purpose of proving the destruction of the will and the circumstances under which it occurred. Having called Crawford in the county court, appellant made him a competent witness by which to prove the transactions and the declarations elicited. This competency was not lost by the appeal to the district court. After the introduction of that evidence and its incorporation in the record, article 3275 of the statute authorized its use by the other parties in that appeal. We therefore conclude that there was no error in overruling the objection of the appellant to the introduction of that testimony.
The appellant introduced in evidence in the trial of the district court the following excerpt from the record of the testimony of the witness F. A. Crawford:
"During the 23 days that he was at my house he did not sit up a minute. During that 23 days I think he was crazy, and don't think that he had any mind. He used a cot and the bed also. Every few minutes he would want to move from one to the other. When he would get on the cot he would go to moving inch by inch as if he was trying to get off of it. And every hour, not longer than that, he was wanting to get up, saying that his bowels was going to move. A half dozen times or more they would move when he didn't know anything about it. I would have to wash him. Frequently he would take what he would call cramps, and you would have to rub him; his feet and legs, and sometimes his hands. Every day and every night on that. Just as bad of a night as it was in the daytime. It was necessary for me or some one else to sit up by his bed to keep him from falling off his bed. From that day to the day of my brother's death he was insane. He was not at himself at the time that he tore up the will. He was crazy at the time that he gave me that check, and didn't know what he was doing. I thought the check, however, was good. My brother was crazy, but I thought the check would be all right. I had no scruples about cashing the check for the purpose of paying what he owed. I thought he was crazy when he tore up the will The $150 and note for $100 was given to Mr. Perdue in order to get the will and the adoption papers, and to pay him for his trouble in caring for my brother."
Thereafter the contestants were permitted, over his objection, to introduce witnesses who testified that Crawford had expressed on other occasions the opinion that the deceased was of sound mind when he destroyed the will. All of this testimony was objected to upon the ground that it was immaterial and irrelevant, and that the contestants, having made F. A. Crawford their witness, could not in that manner impeach him. The testimony which the contestants produced tended to contradict the excerpt from the testimony of the witness Crawford which has been previously quoted, wherein he expressed the opinion that the testator was insane at the time he destroyed the will. That testimony was elicited by the appellant. It was admitted as original evidence in his interest, and was therefore, when used for the purpose of proving those facts, the witness of the appellant. It may be that this impeaching testimony should have been excluded upon the ground that a proper predicate had not been laid, but no such objection was urged in the trial below, and is not available here. Railway Co. v. Jackson,
There are other assignments of error, which we deem it unnecessary to discuss in detail. All of them have been examined and considered, and in our opinion are without merit.
*358The judgment of the district court will therefore be affirmed.