Kelly v. Settegast

Decision Date19 January 1887
CourtTexas Supreme Court
PartiesKELLY and others. <I>v.</I> SETTEGAST and others.

W. P. Hamblen and Fisher & Kerlicks, (Stratton & Ballowe, of counsel,) for appellants. Stewart & Breaker and Eugene J. Wilson, for appellees.

STAYTON, J.

Hugh Kelly died on September 12, 1883, leaving a paper which was presented for probate as his last will on September 17, 1883, by the terms of which he gave all of his property, not required to pay his debts, to W. J. and J. J. Settegast. Kelly left one daughter and some grandchildren, who were the children of a deceased daughter. The will was admitted to probate in the county court, although contested by the daughter of Kelly in her own behalf, and as the representative of the children of her deceased sister. An appeal from the decree probating the will was prosecuted, and on the trial one of the subscribing witnesses to the paper offered as the will of Kelly was permitted to make, in open court, a written sworn statement tending to show the execution of the paper by Kelly. It is claimed that this could not be done in the district court.

Trials on appeals from a county court are had de novo. The district court acquires jurisdiction to hear the contest, and to establish or reject a will, as the facts may require, as fully as has the county court in the first instance; and we are of the opinion that any evidence may in it be taken and heard which might legally be in the county court. If a will should be admitted to probate by the county court on the evidence of one of the subscribing witnesses, it would surely be proper, on appeal, to hear the evidence of another subscribing witness or any other evidence admissible upon such a question.

The important question in this case is, did the district court err in refusing to grant a new trial, based on the claim that the evidence was not sufficient to show that that paper was executed under such circumstances as to make it the last will of Hugh Kelly? The evidence seems sufficient to show that at the time the paper is claimed to have been executed by Kelly he was of sound mind, and there is evidence tending to show that, if he executed the instrument with a full knowledge of its contents, he did so without the exercise of any undue influence brought to bear upon him to induce him to make the disposition of his property in favor of persons not related to him by blood, to the exclusion of those who were. The paper offered for probate bears date August 23, 1883, at which time it is shown by the evidence of the two subscribing witnesses to it that Kelly was very ill at the home of one of the persons to whom the will gives his property. He was an illiterate man, and unable to read or write. It is not shown that he ever gave to any one instructions to write a will, nor that he had requested one to be written.

One of the subscribing witnesses stated that Kelly was about 70 years old, and very ill at the home of J. J. Settegast; that on the afternoon of August 23, 1883, he attended Kelly until about sundown, when he came down stairs, and saw W. J. Settegast approaching the house, met him at the gate, and asked him where he had been; that Settegast then showed him a paper, at which he looked, and saw that it was a will not signed, whereupon he suggested to Settegast that he had better get some other person to write it; that Settegast then left him, and returned in about half an hour, after which they took supper together at the home of W. J. Settegast. The witness then stated that "after supper myself and Mr. W. J. Settegast walked over to Mr. J. J. Settegast's home. We went up-stairs, in the room where Mr. Kelly was lying sick. We talked to him a little while, and he said he wanted to get up on the chamber; and when he got through got back in bed, and Mr. W. J. Settegast pulled out a paper, and read it to him. I was standing by and heard it read, and knew it to be the wording of a will. After Mr. Settegast got through reading it he asked Mr. Kelly if there was anything else he wanted. Mr. Kelly said he wanted a couple of witnesses. He seemed to be satisfied, and wanted me to witness the will, and wanted another witness, and I suggested Mr. Markham would do, and to get Mr. Markham. Mr. W. J. Settegast remarked that he thought Mr. Markham had gone to bed; as he had set up the night before, he was very tired. Mr. W. J. Settegast said Mr. Dagg was here, and Mr. Kelly said, `Well, get Dagg.' Mr. Settegast went out of the room and Mr. Dagg came in. After Mr. Dagg came in the will was lying on a little table near the head of Mr. Kelly's bed. I picked up the will, and asked Mr. Kelly if he had heard it read. He said he had. I asked him if this was his will. He said, `Yes.' I asked him if it was as he wished it, and did it suit him. He said, `Yes; he wanted me and Mr. Dagg to witness it.' I asked Mr. Kelly if he wanted me to sign his name. He said, `Yes.' I signed his name. I was right at the bed, and turned around. Mr. Kelly was lying on his back, and I held the pen, and told Mr. Kelly to touch the pen. He turned on his left side, and caught hold of the end of the pen. He caught the pen with his right hand, and I drew it and made the mark, and I held the pen while he made the mark to the will. After that he said it was `all right, George,' I think." On cross-examination the witness stated that when he saw the paper at the gate it was in the handwriting of W. J. Settegast, and that he suggested that he thought it best that the will should not be in his handwriting; that "it would look better to get Dr. McDonald to write it, as he had written one will before." "After Kelly signed the will with his mark he turned back in the bed. Don't know that I could give his exact words after signing the will. It is my recollection that he said, `That is all right, George,' or, `is it all right, George?' I told him, I think, that it was all right. This is all that was said in regard to the will."

The deceased and the two persons whose names appear as subscribing witnesses were the only persons in the room at the time the paper is claimed to have been executed. The paper exhibited to the witness at the gate, and...

To continue reading

Request your trial
22 cases
  • Boyd v. Frost Nat. Bank
    • United States
    • Texas Supreme Court
    • July 10, 1946
    ...situation is presented here as obtained in the cases cited by petitioners in this connection. For instance, they rely on Kelly v. Settegast, 68 Tex. 13, 2 S.W. 870, where it was in evidence that the testator, a man unable to read or write, while gravely ill at the house of one of his legate......
  • Townsend v. Boatmen's Nat. Bank
    • United States
    • Missouri Supreme Court
    • April 21, 1937
    ... ... Will, 249 N.Y.S. 152; Bloom v. Hartman, 115 Pa ... St. 32, 8 A. 215, 2 Am. St. Rep. 525; In re Henry, ... 41 N.Y.S. 1096; Kelly v. Settegast, 68 Tex. 13, 2 ... S.W. 870; In re Barney's Will, 40 A. 1026; ... In re Lansing, 17 N.Y.S. R. 440, 2 N.Y.S. 117; ... In re De ... ...
  • Brown v. Traylor
    • United States
    • Texas Court of Appeals
    • April 27, 2006
    ... ... This rule was established over a century ago by the Texas Supreme Court in Kelly v. Settegast, which stated: ...          This case comes before us surrounded with facts which call for clear proof that Kelly knew the ... ...
  • Olds v. Traylor
    • United States
    • Texas Court of Appeals
    • April 27, 1944
    ...26 S.W.2d 657. On appeal, the District Court acts de novo, Phelps v. Ashton, 30 Tex. 344; Newton v. Newton, 61 Tex. 511; Kelly v. Settegast, 68 Tex. 13, 2 S.W. 870; Tanner v. Ames' Estate, 37 S.W. 373; and its jurisdiction on appeal is as comprehensive as that possessed by the County Court,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT