Phelps v. Ashton

• Decision Date: 30 April 1867
• Citation: 30 Tex. 344
• Parties: MARY E. PHELPS ET AL. v. MICHAEL H. ASHTON.
• Court: Texas Supreme Court

30 Tex. 344

MARY E. PHELPS ET AL.

v.MICHAEL H. ASHTON.

Supreme Court of Texas.

April, 1867.

Our probate law declares, that any person who considers himself aggrieved by any decision, order, decree, or judgment of the county court may appeal to the district court, and have the case tried de novo. Pas. Dig. arts. 1384, 1460, notes 523, 560.

The effect of an appeal is to remove the cause from the county to the district court, and the cause will be tried there upon the record and the proof of such facts as will enable the district court to from a correct judgment in revising the proceedings of the county court. Pas. Dig. art. 1460, note 560; 27 Tex. 217.

Testamentary executors, or any other person interested in the estate of the deceased, may apply for the probate of the will and grant of letters, and any persons interested may file opposition, and letters will be granted to such testamentary executors as qualify. Pas. Dig. arts. 1266-1268.

Upon an appeal, by a interested party, the case is to be tried de novo in the district court, where all persons interested have the right to be heard.

A will made on the eve of absence, which declares the testator's wish “should I die while absent,” is contingent, and does not take effect if the party die at home, or after his return from the intended absence.

APPEAL from Shelby. The case was tried before Hon. RICHARD S. WALKER, one of the district judges.

The material facts relied on by appellant are as follows:

H. C. Ashton, Sr., on March 18, 1861, executed an instrument in writing, intending to dispose of his property after his death upon a certain contingency. The contingency is expressed in these words: “I, H. C. Ashton, Sr., being on the eve of leaving home for an indefinite time, and not knowing what providence may ordain during my absence, do make and will this request in case of my death while absent.” In this instrument the appellants, the grandchildren of H. C. Ashton, were disinherited, and his reasons given for disinheriting them. Three days afterwards said H. C. Ashton made another instrument, in which he says: “For satisfactory reasons of my own and my beloved wife, I annex this codicil to the foregoing, to have and to bear as full effect as if it had been placed in the body of the original pages 1 and 2, to annul so much of the foregoing as regards the disinheritance of P. W. Harvey's children by my daughter, Lucy Harvey, deceased.” He therein willed to appellants by name a small legacy. He died on the first Monday in August, in 1861, in Shelby county, Texas. On the day before his death the witness Carrew met Ashton at Logansport, about seven miles from his (Ashton's) house, on the way, he and wife, to visit Carrew, who lived six miles from Logansport. Next morning deceased went across the river to vote, and shortly afterwards witness heard that deceased was shot, and went to him. Found deceased lying on a mattress, who told him to look in his desk and he would find his will, which he wanted his wife to carry out. The will spoken of by deceased is the paper now in controversy.

At the March term, 1862, of the county court, C. W. Ashton filed his petition for the probate of the will and for letters of executorship. At the same term the appellants filed their opposition, and at said term the county court refused to probate the will and to issue letters of executorship, from which judgment C. W. Ashton gave notice of appeal, and filed his appeal bond 31st March, 1862, and died before any judgment upon his appeal. On the 23d March, 1863, Michael H. Ashton filed his petition in the district court, praying to be allowed to prosecute the appeal taken by C. W. Ashton for the establishment of the will, and also for the appointment of said Michael as executor. On the same day A. W. O. Hicks was appointed guardian, ad litem, for the minors, appellants in this court. At the same term of the court the appellants filed their exceptions to the application of said Michael, which exceptions were overruled by the court, and said Michael permitted to prosecute the appeal, and the court gave judgment in favor of the validity of the will, and ordered the county court to issue letters of executorship to said Michael, and gave judgment for costs against the appellants, and ordered execution to issue. From this judgment the appellants appealed.

A. W. O. Hicks, for appellants. The words of the document have a plain sense, and should be taken to be the intent of the deceased, and his intent to be what the words say. 8 Bac. Abr. 482, tit. Wills and Testaments, G. Where A made his will and said, lest it should please God that he should not return, devised, etc. He returned and died without changing his will. Held, that the disposition was merely contingent, and that no part of the will was to take effect but on the contingency of his return. 8 Bac. Abr. 482; Vickey v. Hobbs, 21 Tex. 570; Parsons v. Lance, 1 Ves. 191; Sinclair v. Howe, 6 Ves. 608.L. F. Casey, for appellee.

SMITH, J.

Any person who may consider himself aggrieved by any decision, order, decree, or judgment of the county court may appeal to the district court therefrom (O. & W. Dig. art. 830; Pas. Dig. art. 1384, note 523), and the cause will be there tried de novo. Hart. Dig. art. 718; Pas. Dig. art. 1464, note 562.

The effect of the appeal is to remove the cause to the district court for a new trial, and the parties will there stand in the same relation to each other. Hall v. Claiborne, Austin term, 1863, 27 Tex. 217. And the cause will be tried there upon the record and the proof of such facts as may enable the district court to form a correct judgment in revising the proceedings of the county court. 10 Tex. 1863.

The testamentary exec...