Fowler v. Stagner

• Decision Date: 10 October 1881
• Docket Number: Case No. 2723.
• Parties: J. P. FOWLER ET AL. v. J. P. STAGNER ET AL.
• Court: Texas Supreme Court

55 Tex. 393

J. P. FOWLER ET AL.

v.J. P. STAGNER ET AL.

Case No. 2723.

Supreme Court of Texas.

Oct. 10, 1881.

APPEAL from Caldwell. Tried below before the Hon. L. W. Moore.

Suit brought by the appellants on November 15, 1873, contesting the validity of the probate of the will of Susan M. Larremore, proved and ordered to be recorded by decree of the county court of Caldwell county at its April term, 1869, praying that it be set aside and the property of the estate partitioned among the heirs. The plaintiff alleged the invalidity of the will and its probate, for--

1. That it was not in the handwriting of Mrs. Larremore, and was not attested by two or more credible witnesses.

2. That J. T. Powers was not a credible witness, because a principal devisee under the will.

3. That Mrs. Larremore was unduly influenced to sign it by said Powers.

4. That she was not then of sound mind.

5. That the codicil was neither attested nor proved as required by law.

6. That no notice of the filing was given or published.

7. That the affidavit of Laney (one of the subscribing witnesses) does not show that Mrs. Larremore was of sound mind, or that Mrs. Larremore died in Caldwell county, or resided there, or had property there, or any other fact showing that the probate court had jurisdiction, or that the subscribing witnesses signed in presence of each other.

8. That the will was not presented for probate within a reasonable time.

The defendants filed a general denial and alleged the regularity of the probate of the will, etc.

The case was submitted to a jury and a verdict returned for the defendants; judgment entered in accordance therewith, from which this appeal is prosecuted.

The assignment of errors was sufficiently specific to raise these questions which are presented in the appellants' brief:

1. The insufficiency of the probate.

2. The error of the judge's ruling upon the admissibility of witnesses to testify.

3. The charge of the judge.

4. The sufficiency of the testimony to support the verdict.

The case will be sufficiently understood from the opinion.

Jones & Sayers and Russell, for appellants.

I. By reference to the will, it will be seen that it is attested by but two witnesses; one of whom, J. F. Powers, was not only appointed an executor, but was also the principal legatee. An essential requisite of a will being that it shall have been executed in the presence of two credible witnesses, with their signatures as such, it becomes a question as to what constitutes credibility as intended by the statute. We are inclined to the opinion that, in this instance, the word has a dual meaning, conveying not only the idea of trustworthiness, but also that of competency; that is, a witness must not only be unimpeachable in point of veracity, but he must be wholly disinterested. Redfield on Law of Wills, part 1, ch. VI, §§ 2-6. If this be the proper interpretation of the term, we respectfully submit that there must be at least two credible witnesses to every will not written by the testator himself. That there is one credible witness by whom the facts necessary to be proven must be established will not be sufficient, for the law requires two. Art. 5361, Pasch. Dig. That a legatee in a will is not such a person as the statute considers a credible witness, we have but to refer to art. 5370, Paschal's Digest of the Laws of Texas, in which just such an emergency as has arisen in the cause under consideration is expressly provided for. The credibility of a witness who may also be a legatee can only be restored by his forfeiture of every interest dependent on the will. The case of Nixon v. Armstrong, 38 Tex., 296,is decisive. But it may be insisted that, inasmuch as one of the witnesses is not interested in the will, and that it is by the evidence of this witness that the will has been probated, art. 5370 of the statute does not apply. Taking the entire act relative to wills into consideration, we cannot think that the article last cited is so limited in its operation. If it be necessary that the will should be attested by two credible witnesses, and the word “credible” has not the dual signification which we have endeavored to attach to it, then there was no necessity for the enactment of art. 5370, and the law-making power has been guilty of a tautology. To such a conclusion the judicial department will not go if it can be avoided. It has been the uniform policy of this court to abstain as much as possible from so invidious a criticism upon a co-ordinate branch of the government. We therefore take it that Powers, the testator of the appellee, was not such a witness as the law requires to render an instrument of the character which the one under consideration purports to be, valid, and, there being only two witnesses to it, the will must utterly fail for want of the proper attestation.

J. P. Fowler, also for appellants.

[No briefs on file for appellees.]

QUINAN, J. COM. APP.

The decree of the county court of Caldwell county, admitting to probate the will of Mrs. Larremore, was the judgment of a court having general jurisdiction over the probate of wills, and is conclusive and unimpeachable upon any collateral attack. Every presumption will be indulged in its favor. That decree will stand until set aside by a proceeding had directly for that purpose. And in such proceeding, the burden of proof is upon the party seeking to establish the invalidity of the will or its probate. Freeman on Judgments, 319 a,608; Guilford v. Love, 49 Tex., 115; Steele v. Renn, 50 Tex., 482;Beazley v. Denson, 40 Tex., 436.

In this suit, brought directly for that purpose, the facts of the residence of Mrs. Larremore and her death in Caldwell county, and consequently that the court had jurisdiction, were shown. The proof was also abundant to establish her sanity; that she executed the will and dictated it; that she was of lawful age, and that it was attested by witnesses of lawful age, who subscribed it as such in her presence. In fact there was no proof of the absence of any circumstance necessary to the due execution of the will, or of the existence of any fact to invalidate it, unless it be that the will is attested by only two witnesses, and one of these, Powers, is a devisee under the will and appointed one of the executors. And this presents the important question in the case: Was this will duly executed?

The statute of wills declares it in effect essential to the validity of a will, that, if it be not wholly in the handwriting of the testator, it shall be attested by two or more credible witnesses, above the age of fourteen years, subscribing their names in his or her presence. A credible witness is a competent witness. Redfield on Wills; Lewis v. Aylott, 45 Tex., 190;Nixon v. Armstrong, 38 Tex., 298. One who is interested as taking under the will is incompetent to...