Phelps v. Ashton , 30 Tex. 344 ( 1867 )

Smith, J.

Any person who may consider himself aggrieved by any decision, order, decree, or judgment of the county court may appeal to the district court therefrom, (O. & W. Dig., Art. 830,) [Paschal’s Dig., Art. 1384, Note 523)] and the cause will be there tried de novo. (Hart. Dig., Art. 718,) [Paschal’s Dig., Art. 1464, Note 562.]

The effect of the appeal is to remove the cause to the district court for a new trial, and the parties will there stand in the same relation to each other. (Hall v. Claiborne, Austin term, 1863,) [27 Tex., 217.] And the cause will be tried there upon the record and the proof of such facts as may enable the district court to form a correct judgment in revising the proceedings of the county court. (10 Tex., 1863.)

The testamentary executor, or any other person interested in the estate of the deceased, may apply for the probate of the will and grant of letters. (O. & W. Dig., Art. 702,) [Paschal’s Dig., Art. 1266.] And any person interested, at any time before the trial, may file opposition, &c. (O. & W. Dig., Art. 703,) [Paschal’s Dig., Art. 1267.] And when the will shall have been probated the court will grant letters to the testamentary executors, or such of them as may qualify, &c. (O. & W. Dig., 704,) [Paschal’s Dig., Art. 1268.] The court is not directed to grant letters to the person who may apply for the probate of the will. It will hardly be contended that Michael Ashton could not have become a party plaintiff or applicant in the county court at any time before the trial in that court. And, as the appeal operated to remove the whole case to the district court for trial de novo, every person interested in the estate had a right to be made a party to the proceedings and be heard, or it must be admitted that the case does not stand in the district court as it did in the county court to be tried de novo, that is, anew, and as in that court. It would only be revisory, and only as between those who might join formally in the appeal; the contrary of which has been decided at this term at Tyler in the case of Davenport v. Hervey & Heard, [ante, 329;] and hence we must conclude that there was no error in permitting Michael Ashton to proceed with the cause in his name, or in the extension of letters to him as an executor of the will.

The appellants contend that the paper offered was not the will of the deceased; that it was contingent, and depending upon the happening of an event upon which its vitality as a will depended, and that it was not proved that such event did in fact occur.

The will reads as follows on that point: “Know all men by these presents that I, H. 0. Ashton, Sr., being on the eve of leaving home for an indefinite time, and not knowing what Providence may ordain during my absence, do make_ and will this request in -case of my death while absent.” &e.

It is quite apparent that this was a contingent will, depending for its validity as a will upon the happening of the event named, his “ death while absent,” at that leaving of home. And if he did not die on that trip, it is quite clear that the instrument could not take effect as his will. (2 Watts & Serg., 145; 6 Ves., 608; 1 Ves., Sr., 109; 16 Tex., 425.)

After a trial in the district court, the will was established and ordered to be admitted to record in the county court, and letters to issue to Michael Ashton.

If all the facts given in evidence in the court below were sent up in the statement, we might then revise the action of the court on the question, whether the contingency had occurred upon which the will was to take effect, (his “ death while absent.”) The action of the district court is presumed to be correct, until the contestant presents the cause here and places his finger upon the error; and if the objection be the want of evidence to support the verdict and judgment, “a clear and accurate statement or bill of the facts given in evidence on the trial of the cause” must be secured and sent up with the record, (O. & W. Dig., Art. 548,) or the presumption will be here indulged that every material allegation of the pleadings was established by full and legal testimony. It should be made to appear, at least inferentially, that the statement contains all the facts given in evidence. (1 Tex., 476.)

The statement here sent up with the record does not pretend to embrace all the facts given in evidence on the trial below, but only purports to give the substance of the evidence of the witness William Carrew, and, for aught that appears, there may have been a number of other witnesses who testified in the cause, and fully supported every point necessary for the plaintiff "below to make out for the success of his cause.

We do not believe there is anything on the face of the will to show it had not been completed for the want of a subscribing witness. The assertion is made that the handwriting can be proved without subscribing witnesses.

There being no error apparent, the judgment below is

Affirmed.