Nehring v. McMurrian

• Citation: 57 S.W. 943
• Parties: NEHRING et al. v. McMURRIAN et al.
• Decision Date: 25 June 1900
• Court: Supreme Court of Texas

57 S.W. 943

NEHRING et al. v. McMURRIAN et al.

Supreme Court of Texas.

June 25, 1900.

Error to court of civil appeals of Third supreme judicial district.

Action by Victoria McMurrian and others against Fritz Nehring and others. From a judgment for plaintiffs, affirmed by the court of civil appeals (53 S. W. 381), defendants bring error. Reversed.

David H. Hewlett, Geo. F. Pendexter, and Geo. E. Shelley, for plaintiffs in error.

T. W. Gregory, Geo. S. Walton, and M. C. Granberry, for defendants in error.

WILLIAMS, J.

The defendants in error. who were plaintiffs, brought this suit to recover an interest in the land sued for, claiming that such interest had been inherited from Peter Conrad, the original grantee, by his nephew, Frank Conrad, and that, upon the death of Frank Conrad unmarried and without issue, it had been inherited from him by his mother, Mary, and upon her death had been inherited by plaintiffs, her brother and sisters. There was no direct evidence of the death of either Frank Conrad or his mother, but plaintiffs undertook, by proof that they had both disappeared, and had not been heard from for more than 7 years, to raise the presumption (1) that Frank Conrad had died without issue before his mother, and (2) that the latter had subsequently died. Their evidence tended to show that Frank Conrad, then 14 to 16 years of age, was last heard from in 1868, since which time those of his relatives and friends who would most probably have received intelligence of him had not heard of his existence, after due inquiry, and that his mother was last seen alive in 1878, since when nothing further had been heard of her. The verdict of the jury was in plaintiffs' favor upon both propositions, and the sufficiency of the evidence to authorize the finding is not questioned. The defendants adduced evidence of a witness, which, if true, proved that Frank Conrad was seen alive as late as 1893, but this the jury must have found to be unworthy of credit. The assignments of error are based upon the refusal of a requested instruction and the exclusion of evidence by the trial court. The refused instruction was as follows: "The plaintiffs are not entitled to recover in this cause unless you believe from the evidence that Frank Conrad is dead, and, further, that at the time of his death he did not leave a surviving wife, child, or children, or the descendants of either. You are further instructed that you are not authorized, in the absence of evidence, to presume that said Frank Conrad did not leave a surviving wife, child, or children, or the descendants of either; and unless there has been evidence offered tending to establish the fact that at the death of said Frank Conrad, he did not leave a surviving wife, child, or children, or the descendants of either, you will find for the defendants." A witness named Achee testified that in 1889 he knew a man named Frank Conrad, who lived in East Baton Rouge parish, La., stating approximately his apparent age, in connection with which defendants offered the further testimony of the witness that Conrad stated to him that he was born at Woodville, Miss.; that his father's name was Fred Conrad, and his mother's name Mary; and that his father died at Woodville while he (Frank) was a child. These facts correspond with those proved by plaintiffs as to the birthplace and parentage of the Frank Conrad under whom they claimed, and, if admitted and accepted as true, would have destroyed their case entirely, or have limited their recovery to a smaller interest than they recovered. The evidence was excluded upon plaintiffs' objection that it was hearsay and self-serving, and that it was not shown that the Conrad who made the declarations was dead. Defendants also offered to prove by Mrs. Englander, a cousin of the Frank Conrad under whom plaintiffs claim, that in the latter part of 1896 or early part of 1897, after this suit was brought, she was informed by one Holman, who knew Frank Conrad when a child, as well as his father and mother, in Woodville, Miss., that Frank Conrad was living on the Yazoo river, in Mississippi, in 1891 or 1892. This evidence was also excluded on the ground that it was hearsay.

1. The proposition stated in the first sentence of the refused instruction, that the plaintiffs must show that Frank Conrad was dead, and that he did not leave surviving wife or children, or descendants of either, was fully given in the charge of the court; and the jury must have found that such proof was made, in order to reach the conclusion expressed in their verdict. The other sentence of the requested charge contains the proposition that the presumption was not authorized in the absence of evidence that Frank Conrad left no surviving wife or child, or the descendants of either. This evidently meant that such presumption could not be indulged even if the jury should find, as they must have found, if they accepted the evidence for plaintiffs, that Frank Conrad disappeared when he was 14 to 16 years of age, and was never afterwards heard of, and therefore indulged the presumption of his death. There is respectable authority for the proposition that where an unmarried man disappears, and is unheard of for so long a time as to warrant the presumption of his death, the further presumption that he continued unmarried and died without issue is authorized. Shown v. McMackin, 42 Am. Rep. 684, citing Rowe v. Hasland, 1 W. Bl. 404; Banning v. Griffin, 15 East, 293. Other authorities state that there is no such presumption. Abb. Tr. Ev. 85, 86; Whart. Ev. § 1279, and cases cited. This apparent difference of opinion may disappear when the facts of the decided cases are closely analyzed, but it is unnecessary for us to critically examine the question as to presumption in the absence of evidence. Conceding that the plaintiffs must furnish evidence upon the point besides the mere presumed death of Conrad, we think there were circumstances from which the jury could have properly found, if they concluded that the facts warranted the presumption that Conrad was dead at the end of seven years from the date when he was last heard from in 1868, that he died unmarried and without issue. The facts that he died quite young, as presumed; that his relatives and friends who testified had never heard of his marriage; the absence of any claim made by wife or children during the long time which has passed, in which both parties appear to have made diligent search for intelligence of him by inquiries and advertisements, —all tend to the conclusion that he left no wife or child. Banning v. Griffin, 15 East, 293. The requested instruction added nothing to the general charge, except the proposition that the jury could not presume the fact in question in the absence of evidence; and this was inapplicable to the case, since there was evidence, and would have been misleading, as the jury would probably have understood it to mean that they could not infer the fact that Conrad was not...