Ochoa v. Miller

• Decision Date: 22 May 1883
• Docket Number: Case No. 4702.
• Citation: 59 Tex. 460
• Court: Texas Supreme Court
• Parties: YSMAEL OCHOA v. J. P. MILLER ET AL.

59 Tex. 460

YSMAEL OCHOA

v.J. P. MILLER ET AL.

Case No. 4702.

Supreme Court of Texas.

May 22, 1883.

APPEAL from El Paso. Tried below before John Bailey, Esq., special judge.

Suit brought by J. P. Miller, guardian, etc., in trespass to try title to an undivided half of an urban homestead in the town of San Elezario, in El Paso county. The suit was for the minor heirs of Theodore J. Miller, deceased, and the petition was filed August 12, 1879. The defendant claimed under a will, alleged to have been made by Theodore J. Miller, bearing date in 1871, by which he bequeathed to his widow, Calistra Iturbido Miller, the homestead, and to each of the minor plaintiffs $1 on their arriving at the age of twenty-one years; and also under a deed from the said Calistra and Santos Dias, with whom she intermarried after the death of her first husband, Theodore J. Miller. The deed bore date December 17, 1875, and was signed by Santos Dias, whose name did not appear in the body of the deed, and by his wife. The will seems never to have been probated; its genuineness was not questioned, but, on the contrary, was admitted. The court below, in passing upon evidence of payment of taxes, held substantially that proof of payment of taxes could only be made by certificate of the comptroller of the state. The defendant, in addition to the plea of not guilty, suggested permanent and valuable improvements made by him. Judgment for plaintiffs.

A. Q. Wingo, for appellant.

No briefs for appellees on file.

WEST, ASSOCIATE JUSTICE.

In view of the very careful provisions of our statutes as to the execution (R. S., arts. 4857-4876), manner (R. S., arts. 1831-1835 and 1847-1856 et seq.) and time (R. S., art. 1828) in which wills shall be probated, deposited and recorded, we are of the opinion that a will cannot be used in evidence in this state as constituting a title, or a link in the chain of title, to property, without it has been probated in the manner and form required by our law. Paschal v. Acklin, 27 Tex., 173;Tynan v. Paschal, 27 Tex., 286;Brundige v. Rutherford, 57 Tex., 26.

This seems now to be the general rule in the United States.

In Wharton on the Law of Evidence (vol. 1), it is said (section 66): “Without this proof (probate), the will itself, as a title to property, cannot be received in evidence.” For this he cites many authorities, some of which, however, do not seem quite to bear him out in his statement.

In Greenleaf (vol. 1, sec. 518) the rule is laid down as follows: “In all cases where the court of probate has jurisdiction, its decree is the proper evidence of the probate of the will.”

Abbott, in his work on Trial Evidence (p. 109, sec. 59), says: “A will is put in evidence by showing it to have been duly proved in the probate or other competent court within the state…. This is now the primary and exclusive mode of proving a domestic will.”

The court, under the circumstances, therefore, did not err in excluding the will of Miller as a link in the chain of title of appellant, in the absence of evidence of its probate under our laws.

In order to use it as evidence of title to property, it must be properly probated. In this case, as its genuineness is admitted, and the proof shows that it has not been under the control of the appellant, nor in its proper place of deposit (R. S., art. 4875), but has been in the possession and under the control of appellees ever since the death of the testator, it may still be probated if the appellant takes the proper steps and makes the proper proof to the satisfaction of the court (R. S., art. 1828). No letters testamentary can, however, issue.

Where a will appears to be ancient, and comes from the proper custody, and possession has been had consistent with its terms for a long period of time, and its probate was impossible or impracticable, the...