25 S.W. 71 (Tex.Civ.App. 1893), Brown v. Lazarus

Citation:25 S.W. 71, 5 Tex.Civ.App. 81
Opinion Judge:[5 Tex.Civ.App. 82] STEPHENS, J.
Party Name:BROWN v. LAZARUS et al.
Attorney:Swan & Swain and Templeton & Patton, for appellant. J. H. Cobb, for appellee J. J. Lang, Templeton & Jones. Head & Dillard, for appellee Sam Lazarus.
Judge Panel:HEAD, J., disqualified, and not sitting.
Case Date:October 25, 1893
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas
 
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Page 71

25 S.W. 71 (Tex.Civ.App. 1893)

5 Tex.Civ.App. 81

BROWN

v.

LAZARUS et al.

Court of Civil Appeals of Texas

October 25, 1893

Appeal from district court, Wichita county; George E. Miller, Judge.

Action by Mary Brown against Sam Lazarus and others. From a judgment for defendants, plaintiff appeals. Reversed in part.

Swan & Swain and Templeton & Patton, for appellant.

J. H. Cobb, for appellee J. J. Lang, Templeton & Jones. Head & Dillard, for appellee Sam Lazarus.

[5 Tex.Civ.App. 82] STEPHENS, J.

Conclusions of Law and Fact.

1. Appellant, Mary Brown, by this suit sought to recover, as sole heir of Patience Castleman, from appellees, who claimed under Michael D. and Andrew L. Castleman as the true heirs, the league of land in controversy, consisting of two tracts, situated, one in Wichita county, and the other in Wichita and Archer counties. The contention of appellant is (1) that the proof of heirship offered by appellees, in so far as they sought to establish that those under whom they claimed were the true heirs of Patience Castleman, the common ancestor, by the declarations of Michael D. and Andrew L. Castleman, was inadmissible; and (2) that the findings of the court against the heirship claim of appellant, and in favor of that of appellees, were not supported by the evidence. Appellant, to maintain the issue on her part, undertook to prove that, after the death of her mother, her father, William McDaniel, married Sarah Castleman, the surviving widow of John K. Castleman, son of Patience Castleman; that a single child, John McDaniel, was the issue of this marriage, who died without issue after the death of his mother, and before the death of his father; that, at the death of this child, all the descendants of Patience Castleman were dead, including the children of John K. Castleman, the last of whom, she claimed, died pending this second marriage of her father. [5 Tex.Civ.App. 83] The theory of appellees was that no such child ever lived, but, if there ever was such a child, that Michael D. Castleman, son of Patience and Andrew L. Castleman, son of John, one or both, survived him, and were the sole heirs of Patience, when they assigned their rights as such heirs, about the year 1855, to those under whom appellees claimed. In pursuance of this transfer of the Patience Castleman certificate, the lands were afterwards located, and, in the year 1867, patented. It was contemporaneous with this transfer, and principally in connection therewith, that the declarations, both written and oral, objected to were made, which was more than 30 years before this controversy arose. The certificate was granted to John K. Castleman, as the administrator of the estate of Patience Castleman, about the year 1828, and, after the death of said John K., which occurred in the year 1840, was withdrawn from the probate records of Montgomery county, where it had been on file among the papers pertaining to the Patience...

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