Martin v. McAdams

• Decision Date: 18 June 1894
• Parties: MARTIN et al. v. McADAMS et al.
• Court: Texas Supreme Court

Page 255

27 S.W. 255

MARTIN et al. v. McADAMS et al.

Supreme Court of Texas.

June 18, 1894.

Error from court of civil appeals of fifth supreme judicial district.

Proceedings by S. R. Martin and others against Mary McAdams and others to probate a will. From a judgment of the court of civil appeals affirming a judgment of the district court, where the judgment of the county court was reversed, plaintiffs bring error. Reversed.

McKinnon & Carlton, for plaintiffs in error. Smith & Wear, Tarlton & Morrow, and Upshaw & Jordon, for defendants in error.

GAINES, J.

This was a proceeding to probate a will. By the judgment of the county court the will was admitted to probate; but, upon appeal to the district court, there was a verdict declaring it a forgery, and a judgment accordingly. The latter judgment was affirmed in the court of civil appeals.

Upon the trial, each of the two persons whose names appeared to the alleged will as subscribing witnesses testified that the signature which purported to be his resembled his signature, but that he had no recollection of ever having subscribed the paper as a witness. One testified, also, that he had at one time witnessed a will for the alleged testator, but that the paper in controversy was not that will. The other testified that, if he had to swear one way or another, he would swear that he did not sign it. The proponents then sought to establish the will as a holographic will; and, in order to show that the instrument was wholly in the handwriting of the alleged testator, they offered to prove by Lula Thomas, one of the devisees and a daughter of the deceased, and one of the applicants for the probate, that the paper was in her father's handwriting. They also offered to prove the same fact by the husband of Lula Thomas, who was also a party plaintiff in the proceeding. The evidence was objected to on the ground that the witnesses were incompetent to testify as to that fact, and was excluded. We think this was error. Were the witnesses incompetent to testify as to the handwriting of the alleged testator by reason of being interested in and parties to the proceeding? The original statute of this state, which changed the rule of the common law prohibiting parties or persons interested in suits from testifying in such suits, contained this provision: "In the courts of this state, there shall be no exclusion of any witness on account of color, nor in civil actions, because he is a party to, or interested in the issue tried." Pasch. Dig. § 6826. The corresponding provision of the Revised Statutes reads as follows: "No person shall be incompetent to testify on account of color, nor because he is a party to a suit or proceeding or interested in the issue to be tried." Article 2246. This language is certainly broad enough to embrace every contested case of any nature in the courts, and therefore applies to the case of a contested application of the probate of a will. The change from the words "civil action" in the original statute to the words "suit or proceeding" is somewhat significant, and indicates that its purpose was to remove any question as to the applicability of the law growing out of the nature of the proceeding in which the issue was to be tried. The question, therefore, narrows itself down to the point whether the rejected testimony comes within the exception which is contained in the following article of the Revised Statutes: "In actions by or against executors, administrators or guardians in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with or statement by the testator, intestate or ward, unless called to testify thereto by the opposite party, and the provision of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent."...