Stephenson v. Stephenson , 6 Tex. Civ. App. 529 ( 1894 )

This is an appeal from a judgment of the District Court admitting to probate the will of Mrs. Eliza Stephenson, deceased. The application to probate the will was made by the appellee, who was named in the will as executor, and was contested by appellants, who were children of the deceased, upon the grounds alleged, first, that the paper offered for probate was never executed by the deceased, but was a forgery; and second, that if the paper was executed by Mrs. Stephenson, she had not at the time it was done sufficient mental capacity to make a will.

The case was tried before the judge without a jury, and a judgment was rendered probating the will.

There is no assignment of error which directly questions the sufficiency of the evidence; but we have examined it, and conclude that it was sufficient to prove that the testatrix executed the will, and that she was when she did so of sound mind. All other facts essential to the probating of the instrument were established.

The court properly overruled the objections to the testimony of R.E. Swinney to the circumstances attending the execution of the will. The statute requires that proof of the execution of a will be made by one of the subscribing witnesses; but where such evidence is produced, it does not forbid the taking of other testimony in cases of contested applications, to corroborate the testimony of the subscribing witness. One of the subscribing witnesses to the will was produced in court in this case, and the law in this respect was complied with. We know of no rule of law which would require the introduction of all of the subscribing witnesses before other evidence to sustain the will could be received. A failure to produce such a witness might in some instances arouse suspicion, and incline the court, in doubtful cases, to refuse to probate the will until his testimony was had. But here the deposition of the absent witness, who was a woman, had been taken, and was quashed on motion of appellants before the trial, and there is nothing to suggest an effort to suppress her testimony. The other objection to the competency of Swinney, that he was interested in the cause and not competent to testify to transactions with deceased, is not well taken. He had no interest in the case. His child was one of the beneficiaries of the will, but he took nothing under it. Besides, if he were an interested party, this, it seems, would not disqualify him. Rev. Stats., arts. 2246, 2248; Beazley v. Denson, 40 Tex. 436, 437.

The objections to the evidence of Mrs. Chessie Stephenson, the wife of one of the devisees under the will, were the same as those taken to the competency of the witness Swinney, and are disposed of by what is said above.

The bill of exceptions to the exclusion of the declaration of the deceased subscribing witness is not good, in that it fails to state what the answer of the witness Wallace to the question to which objection was sustained would have been, and we can not review the ruling. But there was no error committed in the exclusion of such declarations of the subscribing witness, if it were admitted that the witness would have answered as appellants claim. It was proposed to show by one Wallace that something like twelve hours after the alleged execution of the will, and several hours after Mrs. Stephenson's death, one of the parties whose name appeared to the will as a witness, and who had since died, declared that the deceased had not executed the will, but that all of the parties were, by agreement, to meet some days after and sign it up. This was purely hearsay, and could not be received as competent evidence of the fact stated. It is claimed to have been a part of the res gestæ. We can not understand of what transaction it was part. Certainly not of a previous execution of the will, because by the declaration it was proposed to prove that the will had not been executed. It can not be treated as part of the res gestæ of an agreement or conspiracy to manufacture a will, because there is no evidence of the existence of any such fact. There is, it is true, evidence that another of the subscribing witnesses made a statement similar to that sought to be proved as made by the dead witness. But such evidence was not competent to prove the fact stated, but only to discredit the witness who made it.

There being no error in the rulings of the court, the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.