Beeks v. Odom
| Decision Date | 09 March 1888 |
| Citation | 7 S.W. 702 |
| Parties | BEEKS <I>et al.</I> v. ODOM <I>et al.</I> |
| Court | Texas Supreme Court |
Appeal from district court, Wharton county; W. H. BURKHART, Judge.
Application for the probate of a will by J. C. Odom and others, contested by G. D. Beeks and others. Will admitted to probate, and contestants appeal.
Parker & Pearson, for appellants. P. E. Peareson, for appellees.
Appellees made application for probate of the will of Mrs. J. V. Cook, which was contested by the appellants, but, after hearing, the will was admitted to probate. An appeal was prosecuted, and on hearing in the district court the will was again admitted to probate, and from that decree this appeal is prosecuted. The contestants denied that the testatrix executed the will; claimed that, if she did so, this was done at a time when she had not mental capacity to dispose of her estate by will; and further alleged that, if she executed it, this was done under undue influence, fraud, and threats made and exercised on her by one of the beneficiaries named in the will. If there is faith to be placed in human testimony, there can be no doubt that the testatrix, while of sound mind, voluntarily executed the paper offered for probate, with a full and clear knowledge of its contents, and with intent thereby to dispose of all property she might own at the time of her death. Nor can there be doubt that the instrument was executed and attested with all the formalities required by the statute.
When the matter was pending in the county court, the testimony, as required by the statute, was reduced to writing, and sworn to, and subscribed by the witnesses, and filed. When the matter reached the district court, one of the subscribing witnesses to the will was absent, and his testimony taken in the county court was offered in evidence. This was objected to, on the ground that the contestants did not then have an opportunity to cross-examine the witness. The statute in relation to testimony taken in the county court on the probate of a will is: "A certified copy of such record of testimony may be read in evidence on the trial of the same matter in any other court when taken there by appeal or otherwise." Rev. St. art. 1855. A will cannot be admitted to probate without proper notice, and all persons interested have the right to resist its probate, and to cross-examine any witnesses introduced to establish the fact that the paper offered ought to be probated. If such persons cross-examine a witness, the cross-examination will be reduced to writing, and in case of an appeal they will have the benefit of such evidence as may be thus drawn out. If, however, they fail to cross-examine a witness, this furnishes no reason why the evidence given by the witness in the county court should not be used on appeal, whether the witness is present or not. The original testimony seems to have been offered, and not a certified copy; but there was no objection to it, on this ground, urged when the evidence was offered, and, had there been, we see no reason, if it can be produced without inconvenience, why the original may not be used instead of a certified copy.
The second assignment calls in question the correctness of the ruling of the court in excluding testimony of witnesses named, but it does not appear by the bill of exceptions what the witnesses would have stated had they been permitted to testify in regard to matters of which the contestants sought to interrogate them. Unless we were informed what the evidence of the witnesses would have been, it is impossible to determine whether the ruling of the court was correct or not; and all presumptions are to be indulged in favor of its correctness until the contrary be shown.
It seems that, on the trial in the district court, the evidence of the subscribing witnesses present was again reduced to writing, and that this, in part, may have been done out of court, but brought into court, and there read and subscribed and sworn to, after which the witnesses were again examined and cross-examined in open court. Reducing a part of the testimony to writing out of court, when not taken by deposition, was an irregularity, which, so far as we can see from the bill of exceptions, may have been participated in by both parties; but it did not become evidence until assented to by the witnesses in open court, and by them subscribed and sworn to. We do not see that the course of procedure...
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Earl v. Mundy
...matter in any other court when taken there by appeal or otherwise. In admitting the evidence we think there was no error. Beeks v. Odom, 70 Tex. 183, 7 S. W. 702; Prather v. McClelland, 76 Tex. 574, 13 S. W. 543; Cook v. Denike, 216 S. W. The court was not in error, as submitted in the nint......
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Cook v. Denike
...read in evidence on the trial of the same matter in any other court when taken there by appeal or otherwise." In the case of Beeks v. Odom, 70 Tex. 183, 7 S. W. 702, it is held that such testimony is admissible on appeal to the district court. To the same effect is Prather v. McClelland, 76......
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Aven v. Green, 3574
...is comprehensive on the questions there discussed; it has clarity; and it is applicable and controlling here. See also Beeks v. Odom, 70 Tex. 183, 7 S.W. 702, point 3rd par. at page 703; Starks v. Williams, Tex.Civ.App., 282 S.W.2d 898 (n. r. e.); Probate Code, Secs. 84 and 87; 14A Tex.Jur.......
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Gonzales v. Flores
...whether the matter complained of probably affected the verdict is sustained by the case last cited, as well as the cases of Beeks v. Odom, 70 Tex. 183, 7 S. W. 702, and S. A. & A. P. Ry. Co. v. Moerbe, 189 S. W. 128. The fifth assignment is The sixth assignment is too general to be consider......