Renn v. Samos

• Decision Date: 01 January 1870
• Citation: 33 Tex. 760
• Parties: B. RENN AND OTHERS v. E. SAMOS AND OTHERS.
• Court: Texas Supreme Court

33 Tex. 760

B. RENN AND OTHERS

v.E. SAMOS AND OTHERS.

Supreme Court of Texas.

1870.

1. As a general rule, all written documents, in order to be proved, must be produced in court, together with the witnesses to identify them, that the court and jury may by inspection be assured of the existence and genuineness of the instrument; and the proof of the identity should be first made, before any other evidence in relation to the instrument is admitted, except in cases where the law has expressly dispensed with the identification of instruments.

2. When a written instrument is to be proved by deposition, the usual and recognized method of identifying it is by the deponent attaching it to his answer, marking and describing it; or for the officer taking the deposition to certify that the attached instrument is the identical one presented to the deponent, and about which he testified.

3. If no identification be so made that the court and the jury may know the precise instrument to which the testimony relates, the instrument cannot be legitimately before the court or jury.

4. In a trial directly upon the probate of a will, whether in a court of probate or upon appeal, the burden of proof is upon the executor or those who set up the will.

5. But when a will has been established and probated, and an original suit has been instituted in the district court to set it aside, for want of capacity in the testator, or for fraud, then the relative position of the parties is changed, and the party alleging the incapacity or fraud is put upon the proof of his allegations.

6. Though a testator of sound and disposing memory may, under our present laws, devise his entire estate to strangers; yet all authorities agree that such a bequest is a circumstance which should arouse the suspicion and the strict scrutiny of the courts, and especially so when, as in the present case, there is no apparent cause for the disherison of the decedent's relatives.

7. That the will is in the handwriting of one of the principal legatees is another circumstance which casts suspicion on the instrument in the present case, and which calls for explanatory proof. Vickery v. Hobbs, 21 Tex. 574, cited with approval.

8. And when, as in the present case, there is a concurrence of two such circumstances as these, viz., that the will was written by a principal legatee, and that the estate was devised to strangers without apparent cause, then the suspicions against the validity of the will are so increased as to require undoubted proof of the testator's volition, capacity, and knowledge of the contents of the instrument, and also an explanation by proof why he made such a disposition of his estate, and why the legatee was called upon to write the will.

9. When a party has voluntarily admitted a debt or confessed a crime, that admission should be taken to be true, regardless of contradictory statements made by the same party at a different time, unless he proves that the admissions or confessions were made under a mistake, or were absolutely untrue.

10. Admissions by a legatee that the will was procured by fraud or undue influence will estop his representatives, after his death, from claiming any benefit under the will. Whether the rights of other legatees will be affected by such admissions depends upon the proof respecting their complicity or non-complicity in the alleged fraud or undue influence.

APPEAL from Anderson. Tried below before the Hon. Samuel L. Earle.

Conrad Renn, a native of Germany, died at Rusk, in Cherokee county, on the twenty-fourth of December, 1864. On the seventeenth of the same month he executed his last will and testament, attested by three subscribing witnesses. He had no immediate family, but left brothers and one or more sisters, residents of Germany or elsewhere. By the alleged will he bequeathed various large sums of Confederate money to the indigent families and the Masonic Lodge of Cherokee county, and then gave to his friend and partner, E. Samos, his entire interest in their drug store in Rusk, together with the building in which the business was conducted, and also another house and lot; and to his friend and former partner, L. Veith, he gave his store house and lot in Rusk; and to his friend and old acquaintance, W. P. Brittain, he gave a residence and block of ground in the same place. Trivial bequests were made to other persons, and among them were some of his kindred. These parties, Samos, Veith and Brittain, were appointed executors, and by the codicil, executed three days after the will, were exonerated from bond and accountability to the probate court further than to have the will probated and recorded. and to file an inventory and appraisement.

The county court of Cherokee county, at its February term, 1865, admitted the will and codicil to probate. The present suit was instituted by the heirs of Renn, the alleged testator, against Samos, Veith and Brittain, to contest the validity of the will. Two mistrials of the case were had in Cherokee county, the juries failing to agree; and the venue was then changed to Anderson county, where a trial was had in April, 1869, resulting in verdict and judgment for the defendants. The heirs bring up the case by appeal.

Samos died pending the litigation in the district court, and his widow and executrix became a party in his stead. There was evidence of admissions made by him, some time before his death, that the will was procured by fraud and imposition upon the deceased Renn; that a different will was read to him than that to which his signature was obtained; that Renn expressed great solicitude that his estate should go to his relatives, and paid Brittain five hundred dollars in gold on his promise that he would see, when the war should close, that the relatives of Renn should get the estate. Samos also stated, according to the evidence, that Renn had between ten and fifteen thousand dollars in gold, to which no reference was made in the alleged will, and which disappeared after his death.

There was quite a mass of testimony introduced on both sides. The medical fraternity, as usual in such cases, mustered in full force, and with the usual result of discordant diagnoses and conflicting conclusions. One unfortunate brother of the guild, who was a witness as to the mental condition and capacity of the decedent, was himself subjected by his brethren to an ante mortem mental dissection, in order to determine his own qualifications as a scientific witness.

As the opinion of this court indicates such features of the evidence as it deals with, there is no occasion to undertake a recapitulation of the voluminous testimony.

The briefs of the counsel are commensurate with the dimensions of the record. They cannot be given in full, and it would be doing injustice to their authors to mutilate them.

Parsons & Jones, for the appellants.

M. Priest and Wm. Alexander, for the appellees.

OGDEN, J.

This suit was brought to the district court, under art. 1262, Pas. Dig., to...