Brown v. Lazarus

• Decision Date: 25 October 1893
• Citation: 25 S.W. 71
• Parties: BROWN v. LAZARUS et al.
• Court: Texas Court of Appeals

25 S.W. 71

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.

Conclusions of Law and Fact.

STEPHENS, J.

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. 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 Castleman estate, and turned over to a Mr. McCown for a Mrs. Sarah Castleman, who afterwards died at his home in the year 1855. Soon after her death, which was contemporaneous with his, it was obtained, by those under whom appellees claim, from the representatives of the McCown estate. It was undisputed that Patience Castleman left a son named Michael, who survived John K., and that, of the three sons of John K., — James, John, and Andrew, — the last named was the survivor. Appellees proved by witnesses residing in Falls county that from about 1851 to 1856 or 1857 there lived in that county two men, since deceased, known and called Michael D. and Andrew L. Castleman, and, by one of these witnesses, that they recognized each other as relatives, — the latter as the nephew of the former. On the other hand, it was in proof by a witness for appellant, who had no personal knowledge of any other member of the Castleman family, but whose evidence was corroborated, that "Mike Castleman" died in Fayette county in the year 1845, and that, by family report in the McDaniel family, of which Sarah Castleman had become a part, Andrew died in the state of Arkansas in the year 1846, and that by such report, and the testimony of appellant and daughter as well, Sarah McDaniel died in Houston county in August, 1849, from fright resulting from her little three or four year old son John's being bitten by a large rattlesnake, of which he died in a few hours after his mother. Appellees introduced evidence tending to show that William McDaniel deserted his wife Sarah, and that that marriage was without issue. The Sarah Castleman who died at McCown's claimed to have a son Andrew, who, she complained, had entirely neglected her, and a young man of that name, as claimed by him, appeared at McCown's soon after her death, inquiring about his mother. She made no mention, while at McCown's, of the McDaniel name. In this state of the proof, appellees were permitted to read in evidence the declarations, both verbal and written, made by Michael and Andrew Castleman about the year 1855, to the effect that they were descendants — the former the son, and the latter the grandson — of the Patience Castleman to whom the certificate was granted. The first objection interposed by appellant was that the declarations were inadmissible because there was no proof, outside of the declarations themselves, of the relationship of the declarants to the family of Patience Castleman. The rule on this subject is we think, correctly stated by Mr. Wharton as follows: "Before such declarations, however, can be admitted, the relationship of the declarant to the family must be proved by other evidence than his declarations; for it would be a petitio principii to say that his declarations are receivable because he is a member of the...