Howard v. Russell

• Citation: 12 S.W. 525
• Parties: HOWARD <I>et al.</I> <I>v.</I> RUSSELL <I>et al.</I>
• Decision Date: 19 November 1889
• Court: Supreme Court of Texas

Page 525

12 S.W. 525

HOWARD et al.

v. RUSSELL et al.

Supreme Court of Texas.

November 19, 1889.

Appeal from district court, Fannin county; W. A. EVANS, Special Judge.

Evans & Evans, Robert H. Taylor, M. F. Moore, and Walton, Hill & Walton, for appellants. Taylor & Galloway, Richard B. Semple, and T. A. Green, for appellees.

GAINES, J.

W. W. Russell, one of the appellees, instituted this proceeding in the county court of Fannin county. It was an application for his appointment as administrator of the estate of Thomas C. Bean, deceased. The applicant alleged that Bean had died intestate, being at the time of his death a resident of that county; that he had left an estate of the probable value of $200,000, and that a necessity existed for an administration by reason of the fact that there were debts against the estate. The applicant further alleged that he was not disqualified to act as administrator, and that he was a person of good character, residing in the county, but did not claim that he was a creditor of the estate, or of the next of kin, of the deceased. Appellant H. P. Howard filed an answer contesting the application, alleging that he was of the next of kin to the deceased, and that he resided in the state of Texas, and praying that the administration be granted to him. Sarah A. Dove also appeared and contested Russell's application, averring that she was an heir and of the nearest of kin to the deceased, and praying for the appointment of H. P. Howard. J. W. Saunders also filed an objection to the appointment of an administrator, alleging that he was a brother of the deceased, and praying that in the event an administration should be deemed necessary that he be appointed. The case was tried in the county court, and resulted in a judgment in favor of Howard, from which Russell appealed to the district court. E. J. Short and others intervened in the suit in the district court, claiming to be assignees of all the interest of J. W. Saunders, the alleged brother of the deceased, in the estate, and opposed the appointment of Howard as administrator, and prayed for the appointment of Russell, should the appointment of an administrator be considered necessary. John S. Bean and others, claiming to be next of kin and heirs of the deceased, also intervened and opposed the appointment of Howard, and prayed the appointment of Russell in the event letters of administration were granted. The case was tried before a jury in the district court, and resulted in a verdict and judgment in favor of Russell. There was a motion in the district court to dismiss the appeal on the ground that the bond was not in conformity with the statute, which describes the nature of the obligation to be given upon appeals from the county court in matters of probate. Rev. St. art. 2201. The bond is given for a definite sum, and we have held this is sufficient, although the statute does not provide that the obligation shall name any particular amount. Hicks v. Oliver, 71 Tex. 776, 10 S. W. Rep. 97. There was no error in overruling the motion to dismiss the appeal.

The contestant Howard claimed and offered testimony tending to show that the deceased was a son of one Colmore Bean, who was a brother of George Bean, and it was admitted that Howard was a grandson of George Bean. The proof showed that the deceased was about 70 years of age at the time of his death, and that he was never married, and it also tended to establish that, if he was the son of Colmore Bean, his father and mother were dead, and that his brothers and sisters were also dead, and had left no descendants. There was evidence tending to show that a Colmore Bean, who was a brother of contestant Howard's grandfather, had lived in Washington city from about 1812 to about 1818; that from there he had moved to Northumberland county, Va., and that from there he had moved to Palmyra, Mo., about the year 1836; that he had removed thence to Fayetteville, Ark., and thence to Fannin county, Tex., about the year 1843. There was testimony tending very strongly to show that Thomas C. Bean, the deceased, was the son of this Colmore Bean. In order to show that the Colmore Bean who had lived at these several places was one and the same person, the contestant offered in evidence an oath of allegiance to the republic of Texas, signed and sworn to by Colmore Bean, before the chief justice of Fanning county, on the 3d day of April, 1845, accompanied with a photographic copy of the application of membership to a Masonic lodge in Palmyra, Mo., signed by Colmore Bean, and found among the records of that lodge; also, a photographic copy of a power of attorney purporting to have been signed by Colmore Bean in Northumberland county, Va., dated March 30, 1824, and found among the records of the supreme court in the District of Columbia; and also photographic copies of two subsistence vouchers, signed by Colmore Bean, and found among the archives of the United States treasury department. These last were dated in 1813. After the photographic copies of such documents had been introduced, the contestant also offered to introduce in evidence traced copies of the same signatures. These latter copies were made by the custodians of the respective documents, by placing transparent paper over the signatures and tracing the writing on the paper with a pen. The keepers of the originals testified to the identity of the tracing, and the manner in which the work was done. This evidence was, in our opinion, correctly excluded. We have been cited to no case in which such tracings have been used, and this fact seems to us an argument against the evidence. The art of tracing copies of documents upon transparent paper is not, we think, of very recent origin; and it would seem that if such tracings were properly admissible in evidence some precedent for such practice could have been shown. But, however that may be, the photographic copies, which in each were proved to be of the exact, or nearly the exact, size of the originals, were admitted, and we think they should be deemed more accurate representations of the originals than any ordinary traced copies. An inspection of the photographic copies, in comparison with the signature to the oath of allegiance, cannot leave a doubt that they were written by the same hand; and hence it follows that if the court erred in excluding the traced copies the error was immaterial. The evidence was merely accumulative, upon a question upon which no additional proof was needed.

The contestant also offered in evidence a copy from the minutes of Palmyra lodge of Masons, of the date of June 30, 1836, showing that on that day Colmore Bean was present in the lodge, as a visitor from Benevolentia Lodge 10, of Virginia. It was shown that the original minutes could not be had, and it was proved by the testimony of the secretary of the lodge that he was the custodian of the minutes, and the writing offered was a true copy from the minutes. The testimony in the case showed that Colmore Bean was a Mason; that he subsequently became a member of Palmyra lodge; that he had lived in Northumberland county, Va.; and that there was in that county such a lodge as Benevolentia lodge. The evidence offered therefore tended to prove that the Colmore Bean who came to Palmyra in 1836, and moved thence to Fayetteville, Ark., and thence to Bonham, Tex., was the person of the same name who at one time lived in Northumberland county, Va. The evidence tended to prove the issue, and was relevant. There is some question as to its legality; but the recitals in ancient documents have been admitted in proof of facts therein stated, even as to persons not parties to them. In this case...