Franks v. Chapman, Case No. 5460.

• Decision Date: 12 May 1885
• Docket Number: Case No. 5460.
• Citation: 64 Tex. 159
• Court: Texas Supreme Court
• Parties: L. A. FRANKS ET AL. v. CAROLINE CHAPMAN ET AL.

64 Tex. 159

L. A. FRANKS ET AL.

v.CAROLINE CHAPMAN ET AL.

Case No. 5460.

Supreme Court of Texas.

May 12, 1885.

APPEAL from Atascosa. Tried below before the Hon. D. P. Marr.

In this case the will concluded as follows:

“And now, in the presence of H. L. Harrison and G. W. M. Duck, W. N. Smith, who I have requested to act as witnesses, I declare the writing contained in the foregoing ten pages my last will and testament.

G. W. CHAPMAN.”

After the name of G. W. Chapman, the testator, was written the following:

+------------------------+
                ¦“THE STATE OF TEXAS,  ¦)¦
                +----------------------+-¦
                ¦County of Atascosa.   ¦)¦
                +------------------------+
                

Before me, A. G. Martin, county clerk of Atascosa county, personally appeared George W. Chapman, to me well known, who acknowledged to me that he had signed and delivered the foregoing instrument of writing, and he declared the same to be his act and deed for the purposes and considerations therein stated. In testimony whereof I hereunto sign my name and affix the impress of the seal of the county court of said county, at Pleasanton, this 4th day of June, A. D. 1877.

+-------------------------------+
                ¦[L. S.]¦A. G. MARTIN,          ¦
                +-------+-----------------------¦
                ¦       ¦Co. Cl'k, Atascosa Co.”¦
                +-------------------------------+
                

The names H. L. Harrison, G. W. M. Duck and W. N. Smith were in a handwriting differing from that in the body of the will, and Harrison, Duck and Smith each, on the trial, testified that they believed that their names respectively in the body of the will were in their handwriting and written by themselves. Smith, however, testified that he was sure there was no writing in the will after his signature when he wrote it--all wrote their names at the request of the testator, G. W. Chapman, and in his presence, who declared that it was his will.

A. G. Martin testified that he knew G. W. Chapman well; that on the 4th of June, 1877, Chapman came to him with the paper offered for probate in this case, in his hand, and declared to witness that it was his will, asking him at the same time to authenticate it; thereupon witness, being the county clerk, took Chapman's acknowledgment of his signature to the paper, attempting at the same time to authenticate it as above shown in Chapman's presence, and signed his (witness') name to the certificate of acknowledgment. The evidence showed that the witnesses were all over fourteen years old, and the testator of sound mind.

John D. Morrison and W. J. Bowen, for appellants, that the court should not have permitted Harrison, Duck and Smith to testify to their signatures, they not being subscribed to the will, cited: R. S., arts. 4859 and 1847; 24 Tex., 650; 1st ed. of Redf. on Wills, 1st vol., p. 283, chap. 6, par. 5 and 6; Id., p. 498, chap. 10, par. 5; Id., p. 500, chap. 10, par. 8, 9 and 11; Id., p. 596, chap. 10, par. 41; 1 Jarman on Wills, pp. 216, 84.

That Martin's testimony should have been excluded, they cited: Const., sec. 16, Judicial Dept.; R. S., arts. 1789 to 1793; Ferguson v. Ferguson, 27 Tex., 339.

That the parol testimony of all four of the witnesses was inadmissible because the will did not show on its face that it was witnessed by any one, citing: Hunt v. White, 24 Tex., 643; 1st Tucker's N. Y. Sur. Rep., p. 436; Mann v. Mann, 14 Johns., 1; 3rd Bradford's N. Y. Sur. Rep., pp. 30 and 31; 1st ed. Redf. on Wills, vol. 1, p. 225, note 47; Id., pp. 205 and 206, note 12; Id., p. 498, ¶¶ 5, 6, 7, 8 and 9; Id., pp. 570 and 571, ¶¶ 19 and 20; Id., pp. 639 and 641, ¶¶ 43 and 44; 1 Jarman on Wills, p. 202, chap. 6, ¶ 1, and p. 204, note 3; 1...