*1 probate by showing or tend- defeat evidence spurious ing of a to show the substitution making genuine; for the thus strument resulting one fact. issue only slight probably evi- true that issue; would dence of substitution make the direct, may evi- that issue be raised such dence, evi- indirect circumstantial dence, suspicious circumstances cou-

pled opportunity for with substitution. But, may have while evidence here shown, show, opportunity for or tended substitution, yet every other fact and circum- point conclusively stance in the case probated finding below signed testator; will of it direction, him in under his name and acknowledged by him the wit- afterwards will; expressed tes- nesses it tamentary so, being This intentions. unimportant so was not instrument presence executed in the actual of the sub- 8283, 1925; scribing witnesses. Article R. S. (5th 321; Ed.) on Wills Schouler 1 Alex- § Wills, 435 n ander on §§ 503-513; 81;

470-476, 484, p. 125, 28 R. L. O. Cyc. S.) p. 1120; (N. note 38 L. Case R. A. 161. is affirmed.

BELL al v. et WEDGWORTH et al.

No. 13001. Appeals McCart, McCart, Worth, Court of & Civil Curtis of Port Texas. Fort appellants. Worth. Wedgworth, June Worth, pro Y. K. of Port se. Rehearing Denied June DUNKBIN, Chief Justice. Riley wife, Bell, ap- Bettie have

pealed judgment denying from a them right participate in the benefits of a war govern- risk insurance issued ment favor Roscoe C. Fol- Blackburn. lowing agreed par- facts all the ties trial of the case: Bell, Roscoe C. Blackburn and Minnie daughter plaintiff, legally married Worth, Tex., They Port continued to reside Fort Worth for some *2 subject by they to dis- to him marriage moved said court to be held time after their position by Neb., county, resided thereof court. where Lancaster a soldier drafted as until Roscoe was by all the in suit Answers filed during Army War. the World United States Robinson, wit, defendants, Reuben Birdie to serving he was a in that wár as soldier While totally minors, Thompson, Thompson, Margaret and disabled, permanently and. after and guard- appointed Binion, duly Jack their continued he to the United States his return ian, Wedgworth, administrator Y. K. former hospitals patient government until his in as a Lydick, present estate, ad- and Dan of the E. government him as a issued The death. ministrator. $10,000, policy for a risk disabled soldier war al- Wedgworth for an filed a cross-action named as benefici- mother in which his was com- the funds him out of $500 lowance ing monthly ary. payments on $57.50 He drew administrator, in addi- hands as into his December, 1920, policy until Feb- from statutory of $283.85 commissions tion ruary, 1922, inclusive, March and on approved $2,854.60 included hospital government at in a he intestate died court. mother, Paso, his El After death Tex. his denying plaintiffs Judgment was rendered Oliver, monthly payments on Minerva drew Wedgworth’s relief; denying any claim also November, in until her 1926. death awarding compensation for additional surviving him no Blackburn left Roscoe G. Lydick, administrator, and other Dán E. children, fa- children nor descendants of ther, Blackburn, defendants, as heirs of Roscoe O. descendants, sister, 'brother or or their Wedgworth recovery against as adminis- a except Robinson, and Reuben his sister Birdie remaining in his hands balance' trator for the Margaret Thompson, surviving children by Ly- displaced removed and when he was Blackburn, aof deceased sister. Minnie Bell dick, be turned directing funds that those Blackburn, former wife of G. Roscoe died Lydick administrator. such as over to in on testate the state of Nebraska 23,1928, leaving no children other descend- trial, in introduced the defendants On the ants, or brothers or sisters their descend- parents, Riley copy decree of a divorce a certified evidence ants, leaving surviving her in a suit Blackburn to Minnie Bell Bell, plaintiffs suit, Bettie in this against Black- Roscoe O. her payments any who have never drawn coun- of Lancaster bum in the district court policy. risk The on that war cash value due Nob., ty, The num- dated October policy at the time of the death of Minerva of that court on docket ber of that suit Oliver, insured, $7,677, mother of the the usu- was in That decree was No. 40*36. government paid which over to V. K. in regular decree form of divorce al and Wedgworth, duly qualified administrator concluding por- except Texas, the state of the estate of Roscoe O. de- “This de- as follows: tion which thereof Wedgworth ceased. As such administrator from date here- six months to be absolute cree $2,- has 'been allowed credit the sum of of.” 854.60 advancements made to Birdie Rob- plain- copies of also introduced Defendants inson, deceased, Margaret Thompson, sister of is- petition summons and nonresident tiffs’ niece, administration, and costs and no Blackburn Roscoe O. for the defendant sued contest' has been made of those allowances. showing the same thereon with a return probate Wayne county; The Mich. court of Tarrant him in was served pending, which the administration contain entered in that suit did record The removing Wedgworth an order entry appearance the defend- adminis- answer or ant, estate, Copies Lydick, trator of the and Dan the en- E. Blackburn. who Roscoe C. appointed stead, duly duly quali- in his has all authen- in that suit were tire record requirements Wedgworth fied as appealed administrator. in accordance with the ticated removing provisions from the order him of the to the and credit district full faith of the 4, 1) affirmed, appeal (article court where was and acts § Federal Constitution Appeals from that-order to evi- Court of all introduced and were was of S.W.(2d) applica- [45 overruled clerk of that 427] an of the The certificate dence. copies following tion for writ of error to that contained the decision to those court Supreme certify language: Thereafter, Court “I further dismissed. additional upon (the petition, an order papers non district mentioned above court in the present thereon, notice, which the pending, suit and the di- return the bal- resident remaining decree) ance funds all the documents constitute hands as vorce deposited administrator was every filed said cause.” and character with the clerk of kind if he objected service citation admission plaintiffs See, or also, documentary evidence; she state. be a resident of another all p. 530, defendants, they In Tex. Jur. section intro objection over the p. 560, volume, writing: said: of the same this is following instrument duced “In Texas a divorce decree absolute Black vs. Roscoe C. Blackburn “Minnie Bell *3 ap- entry the date or of its unless set aside No. burn. pealed legal from. has of con- It the effect County, of Lancaster “In the District Court clusively par- establishing the status the of Nebraska. single persons, operating, ties as been it has parties “We, numbered the above the to said, marriage terminating in rem and the pre- hereby agree causé, tha't the entitled do relation.” liminary judgment in shall said cause entered pages 572 to of the same volume 575 parties the shall resume aside that be set many there is a of discussion decisions of marriage full relations. their courts of last in resort this state in divorce 19, 1919. “This November proceedings in full faith was which and credit “Roscoe C. Blackburn given to of decrees divorce in other states Bell Blackburn.” “Minnie plaintiffs who to were residents states, agreement by publica those dis- based on never the service was filed That county tion on di- the defendants who were trict court of Lancaster where the nonresidents n Among decreed, of those states. the so hold and therefore no action decisions vorce was ing Montmorency Montmorency (Tex. it; objected and defendants v. taken Griffin, 1168; App.) by Civ. W. fact. 139 S. Griffin v. to it reason of that 619, App. 910; 54 Tex. Stuart Civ. 117 S. W. objection Over defendants’ on the same Cole, 1040; App. 478, v. 42 Civ. Tex. 92 S. W. ground, plaintiffs also introduced follow- the Trevino, Trevino 54 Tex. de v. 261. In those ing letter: cisions it reasoned divorce that a suit for “Flint, Michigan, February 20, 1920, personam, falling is not a mere suit under “Mrs. Minnie Bell Haddock, the U. decisions Haddock v. 201 of get “My glad your I was to let- dear Wife: 562, 525, 867, S. 26 L. Ann. S. Ct. 50 Ed. 5 sorry you hear ter and that to was sick. 1, Pennoyer 714, Neff, Cas. S. v. 95 U. go As soon I as I feel better will to town 24 Ed. the L. a suit to dissolve money you get you the asked for. When marriage, status in the of and is therefore get thinking going I I about better am back nature of an the action rem within buying to Texas and a chicken ranch where jurisdiction of state where the suit the living working I can make a without so hard. instituted, though the be even you arrange I to wish would meet me either nonresident. City. try in Saint or Kansas I will Louis Juris, many page 366, 25 Tex. deci money your expenses. you In send the Be announcing sions are cited rule the you pray I sweet I see which judgment, rights that a which determines the long. parties disposes to a suit and all the husband, “Tour although involved, judgment, “R. a B.” issues a final may require carry proceedings it ulterior It is manifest those two that instruments Among into it effect the decisions cited are suspend given could or not be effect modi- Coolidge, App. 273, Graham v. 30 Tex. Civ. fy the decree of divorce. 70 S. in which it W. that the held provi finality faith Under the full and credit was not affected authority sions of Federal Constitution and the acts the fact that court reserved change modify matters, decree was admissi the divorce it as to remedial at all events. And since no destroy ble pleading there was where those reservations did not applicable proof nor laws force and effect of the decree. Nebraska, presumed it must be the state of Under the decisions of this state recital as the that are the same laws Texas. divorce it decree of would become that any showing And absence absolute six months its date should be changed decree was ever modified surplusage, considered since virtue respect it, rendering think the court we adjourn- final after our statutes it became it clear that it was valid decree divorce. during of court ment of the term was not, which surplusage whether rendered. But Rev. Statutes Tex Article Civ. final, as, provides at all the decree events, its terms became a suit for divorce must be date, period county plaintiff from its six months which where re expired April 21, ; provides personal Faubion v. sides Vickers and article 2037

923 (Tex. App.) courts, unanimity, and authori state 224 S. W. with Civ. almost entire have reached ties there cited. the same conclusion.” footnotes, In the numerous decisions are pro- is made that Another contention support announcement, including cited to controversy' policy in was com- ceeds Battaglia Battaglia (Tex. App.) v. Civ. 290 S. state, munity property of this under laws 296; (Tex. App.) W. Turner v. Thomas Civ. one- Minnie Bell Blaekhum’s therefore S.W.(2d) 558. plaintiffs passed to under half interest therein appears thus laws and distribution of act of descent of Con- gress proceeds state. This is overruled. now in suit contention vested in the estate of Roscoe O. Blackburn Cheek, Singleton 284 U. S. In v. at the time of his death to be distributed R. Ed. A. L. S. Ct. 76 L. time, his heirs at that and that former Supreme 923, decided-by the United States *4 wife, from been whom he had theretofore di- 15, 1932, February the Veter Court War on vorced, heir, was not his and therefore not disability Congress, providing for ans’ Act of participate entitled to therein. reviewed, quote insurance, and we Wedgworth except V. K. did not to the follows: that decision as denying action the of trial court in his cross- 4, 1925, Stat. compensation of c. 43 “The Act March action for additional as admin- 514), (38 istrator, amended section Lydick, awarding 1310 USCA and to Dan E. as administrator, proceeds Act of 303 of the World War Vsterans’ the of the insurance (which policy and modified the him, Wedgworth, in turn amended had to the exclusion of preceding acts) administrator, give follows: appeal to read as as nor notice of. rulings. judg- Accordingly, from those “ the permitted person class within the ‘If no respects ment in those is left undisturbed. yearly designated beneficiary for re- be as respects But in all other the the of either the insured term insurance newable pp. trial court is affirmed. 28A- 3 Tex. J-ur. last and testa- his lifetime designated beneficiary does ment if the Judgment part; affirmed in left undisturb- the insured or survives survive the insured part. ined prior receiving all of the two hun- and dies forty as installments or all such dred Rehearing by Appellants. On Motion for paid payable applicable, shall be there present insured the value to the estate of the If, by appellants, policy as insisted the pay- monthly thereafter of the installments controversy of insurance in became the com computed able, of date as said value to. munity property of Roscoe C. Blackburn and existing payment of last made under wife, Blackburn, his former Minnie Bell the award.’ upon allege prove burden was them to amendment, terms, express policy acquired “The the of insurance was be divorced, retroactive so as to take effect as of made fore Minnie Bell Blackburn was provision undoubtedly Blackburn, a from Roscoe O. and this power within the of for the reasons failed to dó. States, by this court in White stated v. United agreed statement of facts filed the L. Ed. 530. 270 U. S. 46 S. Ct. record here shows that Roscoe 0. serving a while soldier in the United States amendment, rule, “By which, upon Army War, at the time of the World became contingencies happening of the named totally permanently disabled rea- acts, prior limited the benefit of the un- son thereof was entitled to a United States persons desig- paid installments to within the policy $10,000; for war risk but there no permittees, abandoned, nated class of disability showing in the record whether said wholly and ‘the estate the insured’ was occurred before or after the Minnie date when payee. installments, as the All substituted granted Blackburn a divorce from accruing whether before the death Blackburn; appear Roscoe G. nor does it beneficiary sured after the death policy controversy when the insurance war insurance, in. named certificate as a re- was in fact issued. sult, became assets of the estate of the in- death, appellants sured instant to be therefore failed follows right theory recovery, distributed to the heirs the insured in ac- a show prop- intestacy community cordance with laws of state that the became the residence, erty wife, of his such heirs to be determined the insured and his former even death, though as of the date of his and not as of the that contention it could be said that beneficiary. given spite express date death The could be effect in Godehaux, provisions March al- a resident of Harris of the War Veterans’ Act contrary. leging defendant, old), (38 in an ef- to the substance that 1925 USCA § money, instigated fort to extort had rehearing is overruled. The motion instigation litigation caused the against plaintiff, of certain points different at state, causing his arrest on unfounded crimi- charges, compelling give bond, nal him em- expenses, ploy attorneys, and incur other $20,000; damage in sum of and fur- threatening and at- ther tempted places instigate, at several v. GODCHAUX. GUILLOT causing state, prosecutions, other unfounded No. 11782. plaintiff worry, anxiety, business and loss of Appeals of Texas. Dallas. Court of Civil prayer (as stockbroker), concluding with a injunctive June relief. January 3, 1934, Sixty- judge July 6, Rehearing Denied temporary Eighth district court or- der, restraining continuing- defendant from conduct, directing such course of clerk to notify appear, January 13th, him to *5 why temporary should not show cause writ issue. day set, hearing postponed On the January 19, plaintiff filed an amend- petition, reproducing

ed in substance the action, alleged original pe- cause of in his tition, elaborating thereon, alleging defend- county; ant’s residence to be in Dallas temporarily he was “stationed or located” county; illegally Harris that defendant had wrongfully plaintiff caused the arrest of by maliciously county, instigating in Dallas causing instigation charg- criminal magistrates before es counties, falsely charging other Harris plaintiff fugitive justice, guilty a dling; of swin- that warrants for arrest is- sued, arrested under which he was officers per- county, and that defendant had of Dallas sonally gone to certain individuals in Dallas county, encouraging begin them unfounded prosecutions against plaintiff, etc., praying hearing final he have $20,000, permanent damages, and a junction, restraining defendant from contin- uing alleged and, course of conduct temporarily enjoined. meantime, that he day (January 13,1934) the same defend- comprehensive ant filed answer to the mer- general special its, consisting excep- Monroe, Miller, Hughes & J. P. P.P. denial, pleas tions, of confession appellant. Ballowe, Dallas, all of .for avoidance, prayipg restraining 'Sonfield, appel- vacated, hearing plain- Houston,- final that on Robert L. order be suit, nothing and that defend- lee. tiff take damages, judgment for $200 have result- ant ing restraining LOONEY, order. Justice. from the Guillot, application hearing August S. a resident for the tem- of Dallas January against (postponed 19th) was, porary suit Leon H. writ