Gilkey v. Peeler

Decision Date01 January 1859
PartiesALFRED GILKEY, ADM'R, v. SARAH PEELER, ADM'X.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

The husband is not a competent witness for the defendant, in a suit against the administratrix of an estate, for the recovery of property, claimed by her as belonging to the estate, and in which estate his wife, would be entitled to a distributive share, as an heir of the intestate.

Where a party takes the depositions of a witness, incompetent to testify on account of interest, and the opposite party (who has propounded cross-interrogatories to the witness), offers the depositions in evidence, the party taking such testimony cannot object to the competency of the witness, nor exclude the depositions on that ground.

It is well settled, that if a party know that a witness is interested, he will not be permitted to examine the witness, and afterwards to object to his competency, if he should dislike his testimony. The rule is the same in equity and at law, and is applied equally to testimony given in a deposition in writing, and to an oral examination in court.

Where the issues to be determined, involved the question, as to whether the property sued for belonged to the plaintiff's intestate at her death, or had been given previously to the defendant's intestate, and whether the possession of the defendant's intestate, after the death of the alleged donor, was held in his own right, or in right of his wife, as one of the heirs of the alleged donor: Held, that these were questions of fact, to be decided by the jury. There being conflicting testimony, the refusal to give such instructions as correctly submitted the law by which they should be determined, was error.

If there be a question of fact for the decision of a jury, though the weight of evidence may be against one of the parties, if it be not so conclusive as to warrant the court in withdrawing the question from their consideration, it is the right of the party to have them informed upon the law, as applicable to either conclusion of fact they may think proper to adopt.

Where property to which several heirs are entitled, is taken and held by one of them the possession is, prima facie, deemed to be the possession of all the heirs, and to be held in trust for them.

Such possessor cannot avail himself of the statute of limitations, against the other heirs, unless he took and held possession, under a claim of exclusive right. His possession must have been openly adverse to the other heirs. Mere acts of ownership are not sufficient to establish such adverse possessions.

APPEAL from Lavaca. Tried below before the Hon. Fielding Jones.

This suit was brought by the appellant, as administrator of the estate of Rebecca Gilkey, deceased, against the appellee, as the administratrix of the estate of James Peeler, deceased, for the recovery of a negro man, named Nelson. The defendant answered by a general demurrer; a general denial; by a plea, setting up property in her intestate, by gift from Rebecca Gilkey; and a plea of the statute of limitations.

It was proven on the trial, that Rebecca Gilkey was the sister of Sarah Peeler, the appellee, and that James Peeler, deceased, was her husband. It was also proven that Rebecca Gilkey died in September, 1852; that she brought the said negro (with others), with her to this country, when she moved from Louisiana to Upshur county, in company with Peeler, and another sister, Elizabeth Gilkey. No question was made as to her right and title, except so far as the same might have been affected by the alleged gift, or the possession claimed by the defendant and her intestate. It was proven that Rebecca was an unmarried lady, that she died at the age of about sixty years, and that her father and mother were reputed to be dead.

In the fall of the year 1853, Peeler removed from Upshur county to Western Texas, taking with him the negro in controversy. At the time of the death of Rebecca Gilkey, Peeler lived within three-quarters of a mile from her. There was testimony that James Peeler, previously, and up to the death of the plaintiff's intestate, managed her business, hired out the negro in question, and two others that belonged to her. There was testimony tending to show a gift from Rebecca Gilkey to James Peeler. Ormond Harris testified that on the 4th day of July, 1852, in a conversation with her, in reply to an inquiry of his, “if she was willing that the negro man should be traded,” she replied, “that she did not care what was done with him, that she had given him to James Peeler, and that he might trade him, or keep him, as he pleased.” This witness further stated, that during the time he knew James Peeler, in Upshur county, and in Lavaca county, he had possession of and claimed the said negro up to the time of his death. Nancy E. Eastly testified, that she had heard Rebecca Gilkey say, that she intended James Peeler to have the said negro, Nelson, at her death, that she did not intend he should lose anything for taking care of her. And several years previous to her death, heard her tell Peeler to take the negro, and sell him, or do what he pleased with him; to which he replied that he did not want to sell him, but would hire him, which he did. On cross-examination, she said: “that Rebecca Gilkey claimed the negro, but had previously given him up to James Peeler, and said she would not have anything to do with him, therefore James Peeler exercised ownership over him at her death.” And in answer to an interrogatory, whether Rebecca Gilkey did not claim the negro, Nelson, as her property, and exercise such control, as the owner, up to the time of her death, the witness said that she claimed him, but James Peeler expressed [as the record has it] ownership or control of him, as the owner of a slave would, up to the time of her death.”

Pleasant Harris (a son-in-law of the defendant), testified, that James Peeler had possession of the negro, Nelson, from 1849 to the time of his death, and claimed him as his own; that, during her life-time, he hired out the said negro, and two others of Rebecca's; that he did not hire out his own negroes; and that Peeler died on the 10th June, 1855. Never heard James Peeler claim the said negro, or set up any claim, in the presence of any of the heirs of Rebecca or the plaintiff.

Aaron Roberts, a witness for the plaintiff, testified that Rebecca Gilkey and her sister, Elizabeth Gilkey, lived together at her death; that the negro man, Nelson, was in their possession; that the boy, Nelson, was called her (Rebecca's) negro; and that after the death of Rebecca Gilkey, the said slave remained in the possession of Elizabeth Gilkey, until James Peeler started to western Texas, when he took Nelson with him.

John T....

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14 cases
  • Smith v. Clark
    • United States
    • Arkansas Supreme Court
    • 7 Enero 1952
    ...stand, since the testimony was as effectually developed and rendered as freely available. The trial court made the proper ruling. Gilkey v. Peeler, 22 Tex. 663.' Other cases to the same effect are: McCoy v. Ferguson, 249 Ky. 334, 60 S.W.2d 931, 90 A.L.R. 891; Thomas v. Irvin, Adm'r, 90 Tenn......
  • Reynolds v. Porter
    • United States
    • Texas Court of Appeals
    • 23 Noviembre 1932
    ...(Tex. Civ. App.) 286 S. W. 680; Reyes v. Escalera (Tex. Civ. App.) 131 S. W. 627; Allen v. Pollard, 109 Tex. 536, 212 S. W. 468; Gilkey v. Peeler, 22 Tex. 663; Perdue v. Perdue, 110 Tex. 209, 217 S. W. 694, 220 S. W. 322. In addition to appellants' waiver of their objection to the testimony......
  • Tucker v. Gentry
    • United States
    • Kansas Court of Appeals
    • 7 Abril 1902
    ... ... Callahan v. Billat, 68 Mo.App. 435; Paul v ... Leavitt, 53 Mo. 595; Joice v. Branson, 73 Mo ... 28; Labaree v. Woods, 54 Vt. 452; Gilkey v ... Peeler, 22 Tex. 663. (5) The appellant is in no position ... to question the competency of Betty P. Todd, because he had ... waived all ... ...
  • Cahn v. Reid
    • United States
    • Missouri Court of Appeals
    • 25 Mayo 1885
    ...of the case clearly and pointedly so as to leave no reasonable ground for misapprehension or mistake. Owen v. Owen, 22 Iowa 270; Gilkey v. Peeler, 22 Tex. 663; Ridens v. Ridens, 29 Mo. 470; Lytle v. Boyer, 33 Ohio St. 506; Thompson on Charging the Jury, sect. 78. II. The court erred in givi......
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