De Las Fuentes v. Macdonell

Decision Date03 June 1892
Citation20 S.W. 43
CourtTexas Supreme Court
PartiesDE LAS FUENTES <I>et al.</I> v. MACDONELL.

Appeal from district La Salle county; D. P. MARR, Judge.

Trespass to try title by Julliana de las Fuentes and others against C. M. Macdonell. Judgment for two of plaintiffs and against the others, and the latter appeal. Reversed.

W. Showalter, for appellants. McLane & Atlee, for appellee.


This was an action on trespass to try title, brought by appellants and two other plaintiffs to recover of appellee a tract of four leagues of land granted by the state by letters patent to Valentine de las Fuentes, "his heirs or assigns." Upon a trial before the court a judgment was rendered in favor of each of two of the plaintiffs for an undivided interest in the land, and against the other plaintiffs in-favor of the defendant. The plaintiffs who lost the suit have appealed.

The trial judge did not prepare formal conclusions of law and fact, but at the request of the parties filed a brief statement, showing that he gave judgment in favor of defendant against the appellants upon his plea of the statute of limitations of five years. The plaintiffs introduced testimony which showed that they were the heirs of the original grantee. The defendant introduced deeds to one Charles Callaghan to the land in controversy, (under which he claimed title by virtue of the statute of limitations of five years,) and also the will of Charles Callaghan, showing a devise of the grant to him. The will was admitted to probate in January, 1875, by the clerk of the district court of Webb county. To the introduction of the will in evidence the plaintiffs objected, upon the ground that the clerk of the district court had no power to take probate of a will. The court having overruled the objection, its ruling is assigned as error. The act of June 2, 1873, amendatory of that of August 15, 1870, "prescribing the mode of proceeding in district courts in matters of probate," provided that the clerks of such courts should have power (among other things) "to probate wills * * * when there is no contest." Acts 1873, p. 175, 2 Pasch. Dig. art. 5462a, p. 1187. The judgment admitting the will to probate recites that there was no contest. But it is insisted that the legislature had no power, under the existing constitution, to confer this jurisdiction upon the clerk of the court. Section 9, art. 5, of the constitution of 1869, provides that "the said clerks shall exercise such powers and perform such duties appertaining to the estates of deceased persons, lunaties, idiots, minors, and persons of unsound mind, in vacation, as may be prescribed by law: provided, that all contested issues of law and fact shall be determined by the district court." If this provision stood alone, the language is clearly broad enough to permit the legislature to confer the jurisdiction in question. The probate of wills is a matter "appertaining to the estates of deceased persons." But it is urged that the language used in section 7 of the same article shows that these words were not intended to be used in so comprehensive a sense. Section 7 contains this provision: "The district courts shall also have original jurisdiction for the probate of wills; for the appointing of guardians; for the granting of letters testamentary and of administration; for settling the accounts of executors, administrators, and guardians; and for the transaction of all business appertaining to the estates of deceased persons, minors, idiots, or lunatics, and persons of unsound mind; and for the settlement, partition, and distribution of such estates, under such rules and regulations as may be prescribed by law." We understand the contention to be that the mention both of "the probate of wills" and of "business appertaining to the estates of deceased persons" shows that the framers of the constitution did not understand that the former was included in the latter; and that the same words, when found in section 9, must be construed in the same restricted sense. The argument is certainly plausible. But constitutions, like other written instruments, are not always free from tautology. A striking example is found in both of the sections we have cited in the use of the words, "idiots, lunatics, and persons of unsound mind." The first two might well have been omitted, since lunatics and idiots are certainly "persons of unsound mind." This serves to show that the framers of the...

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