Dolan v. Meehan

• Citation: 80 S.W. 99
• Parties: DOLAN v. MEEHAN et al.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 09 March 1904
• Court: Court of Appeals of Texas

80 S.W. 99

DOLAN v. MEEHAN et al.^*

Court of Civil Appeals of Texas.

March 9, 1904.

Appeal from District Court, McLennan County; Marshall Surratt, Judge.

Proceedings by Mary Dolan for the probate of the last will and testament of P. T. McPartland, deceased, in which Nora Meehan and others appear as contestants. From a judgment refusing probate, proponent appeals. Reversed.

T. A. Blair, Baker & Thomas, Sleeper & Kendall, and W. C. O'Bryan, for appellant. Davis & Cocke and Lindsey & Smith, for appellees.

FISHER, C. J.

This is an action to probate what purports to be the last will and testament of P. T. McPartland, deceased, who died at McGregor, Tex., on the 13th of December, 1902, by Mrs. Mary Dolan, a sister of the deceased. By the terms of the will she is the principal legatee, and is appointed executrix without bond. There was a contest filed in the probate court by other sisters of McPartland. The contestants, in effect, alleged that the will was a forgery, and that the proponent, Mary Dolan, and her two sons, naming them, and Charles Flaherty and his brother ____ Flaherty, and L. M. Braziel and I. W. Nailor, the two last being subscribing witnesses, conspired together for the purpose of executing the will, in order to obtain possession of the property of McPartland, deceased, and that Charles Flaherty was the promoter of the fraudulent scheme. Upon trial of the case in the district court the jury found against the validity of the will, in effect holding that it was not the will of McPartland, deceased.

We do not think any error is shown in the ruling complained of in appellant's first assignment of error. It is true that the parties placed under the rule were legatees under the will, and they were interested, evidently, in its probation, but they were not parties to the record as named in the pleadings. The question here presented is one in the main confided to the discretion of the trial court, and we are not prepared to say that the discretion was abused in this instance.

The evidence of witness Vaughan, as complained of in the second assignment of error, and that of Judge Gerald, complained of in the fifth and sixth assignments of error, was admissible for the purpose of showing the interest and efforts of Flaherty in behalf of Mrs. Dolan. He and Mrs. Dolan and others were charged with the fraudulent execution of the will, and the testimony in question had a tendency to show Flaherty's desire and efforts to obtain possession of the property under the administration proceedings for the Dolans.

The testimony of the witness Cavin, as complained of in the third assignment of error, was admissible. Braziel was one of the subscribing witnesses, and when inquiries were being made about the papers left by McPartland by the appraisers appointed by the court on his estate, Braziel, who was present, furnished no information about the papers, although it appears that he then had the will of McPartland in his possession. This evidence, we think, was admissible. Braziel was charged as one of the conspirators in the fraudulent scheme of executing the will.

Much of the testimony complained of in the fourth assignment of error was admissible. It had a tendency to identify Flaherty as the party seen with the Dolans, and much of it was admissible to show that he and the Dolans were associating together. There were some matters of description, such as stating that Flaherty resembled a pugilist, and other matters of description which were possibly unnecessary, and doubtless will not be brought out upon another trial; but we do not make this the ground of reversal, because we are of the opinion that this evidence was not of a nature calculated to affect the verdict of the jury; and another serious objection is as to the manner in which the question is raised in this court.

The bill of exception complains of all of the evidence. Some of it was admissible, which is practically conceded by the appellants; that is, so much of it as shows that the Dolans and Flaherty were seen together at McGregor. The rule upon this subject is that, if the exception goes to the whole of the testimony complained of, and a part is admissible, the objection to the evidence will not be considered, but that the question should more properly be raised by a bill of exception confined to the objectionable part, or by a charge requesting that the objectionable evidence be excluded.

We are of the opinion that the objections urged to the evidence of Judge Clark, as complained of in the seventh, eighth, ninth, and tenth assignments of error, are not well taken. As a circumstance indicating that McPartland did not execute this will, it was permissible to prove by his attorney, Judge Clark, the professional relationship between them, and his habit of attending to McPartland's business, and that neither he nor his partner Mr. Bolinger, wrote the will in question. The city of McGregor was one of the legatees named in the will. Judge Clark testified with reference to a suit between McPartland and the city of McGregor, which evidence tended to show that McPartland entertained no kindly feeling towards the city. We are of the opinion that the evidence had some bearing on the question at issue.

The...