Stroud v. Oberthier ( 1872 )

Walker, J.

This case has been once before decided by this court, and we do not recognize the necessity of any additional opinion.

In our former opinion we gave full force and credit to the able opinion of the court delivered by Mr. Justice Bell in the case of Blankenship v. Douglass et al., 26 Texas, 225. Nor were we able at that time, nor at the present, to find any conflict between that case and the case of Ayres v. Duprey, 27 Texas, 593. But on the other hand, there is a concordance in the cases, so far as they apply to the one at bar. The verdict in this case is abundantly supported by the evidence.

Counsel mistake the identity or similarity of the case where the trustee of a resulting trust testifies, himself, to the existence of the trust with all the concomitant circumstances attendant upon the creation and execution of it, with that wherein it is sought to establish an implied trust by the testimony of witnesses swearing to the declarations of the trustee, when he may be either dead or in court denying the trust by answer.

The judgment of the District Court is affirmed.

Affirmed.