Clark v. Southern Pacific Railroad , 27 Tex. 100 ( 1863 )

Moore, J.

is not necessary for us to determine whether Butler, the witness offered by appellant, had such an interest, previous to the release executed by him after he was first rejected by the court, as disqualified him from testifying in the cause. ' If he was previously incompetent, he did not remain so after he executed the release. By it, he parted with whatever interest he had in the suit, or subject matter thereof. He had no longer any interest in it, and when offered as a witness the second time, he should have been permitted by the court to have testified. The witness seems, from the bill of exceptions, to have been excluded by the' court upon the hypothesis, that the release was not executed to a party competent to take, or to whom the witness could legally convey. But if the witness had such a certain, immediate or vested interest, as disqualified him from testifying in the cause, what impediment prevented him from disposing, of it to any one he saw fit, or prevented such an one from taking it from him? If he did not have such an interest as would pass by his release, it'could-only be because there was none vested in him which disqualified him from testifying as a witness. And we are at a loss to perceive upon principle, why the owner of the life estate is denied the right of taking by the release of the remainder-man. Suppose all the parties, who,'under the view taken by the court below of their rights, are entitled to vested remainders in the matter in suit, were to join in a release or conveyance of it to the owner of the life estate, would it be inoperative and void ? If so, it must be that they have no certain or tangible interest in the property, such as is susceptible of conveyance. And if all the heirs may join in such conveyance, by what rule are they forbidden from parting with their interest severally; or what legal principle restrains the owner of the life estate from taking conveyances in severalty from them. It may be said, that as the witness is one of the- children of the owner of the life estate, he would upon his mother’s death take the same interest that he is now entitled to under the will; but if she has other children, this is a mistake, for .the interest in remainder which he conveys, would be distributed equally among her heirs, if she died intestate. But if it were so, it would not disqualify him, for he can have no vested or certain interest as-an heir in the estate of his mother.

The judgment is reversed and the cause remanded.

Reversed and remanded.