Ryan v. Tex. & Pac. R.R. Co.

• Decision Date: 29 May 1885
• Docket Number: Case No. 5342.
• Citation: 64 Tex. 239
• Court: Texas Supreme Court
• Parties: JOSEPHINE H. RYAN ET AL. v. TEXAS & PACIFIC RAILROAD CO.

64 Tex. 239

JOSEPHINE H. RYAN ET AL.

v.TEXAS & PACIFIC RAILROAD CO.

Case No. 5342.

Supreme Court of Texas.

May 29, 1885.

APPEAL from Tarrant. Tried below before the Hon. A. J. Hood.

This was an application made by the Texas & Pacific Railway Company in the county court of Tarrant county, Texas, to probate a paper as the last will and testament of Caroline M. Daggett, who died November 6, 1871. The application was filed July 4, 1882. The application alleged that C. M. Daggett left her sole surviving heirs, L. C. Adams, a son, and the following grandchildren, among others: E. M. Turner, William Turner, Robert L. Turner, George H. Turner, Amanda Turner, Josephine H. Ryan, Charles Turner, Carrie Keller, Saney V. Turner and Eda Bell Turner.

Josephine H. Ryan (joined by her husband, A. P. Ryan), R. L. Turner, E. M. Turner and Stephen Terry (guardian for Amanda Turner), W. C. Ferguson (guardian for Saney V. Turner and Eda Bell Turner), by A. M. Carter, their attorney, accepted service of the application to probate the will; and on October 19, 1883, Josephine H. Ryan (joined by her husband, A. P. Ryan), Carrie Keller (joined by her husband, E. H. Keller), R. L. Turner, Amanda Turner, minor (by her guardian, S. Terry), and Charles Turner, appeared and answered the application to probate the will, and contested the applicant's right to have the same probated.

The application filed in the county court was, by order of the county court, transferred to the district court for the reason that the county judge, R. E. Beckham, had been of counsel in regard to the matter, and the case then proceeded in the district court.

On the 23d day of September, 1884, the application came on for trial in the district court of Tarrant county, and the district court of Tarrant county admitted the instrument to probate as the last will and testament of C. M. Daggett.

The contestants excepted to the ruling of the court admitting the will to probate, and gave notice of an appeal to the supreme court of the state of Texas; took a statement of facts and bill of exceptions; gave an appeal bond; assigned errors, and bring this cause to our supreme court by appeal.

The errors relied on are:

First. The court erred in admitting to probate the paper offered for probation, and probated as the last will and testament of Mrs. C. M. Daggett, deceased.

Second. The court erred in admitting the deposition of the witness Fannie E. Ottley, over the objections of contestants, as shown in the statement of facts.

Seventh. The court erred in overruling contestants' demurrers and exceptions to the application to probate the will, as appears in the judgment of the court.

The application was filed in the county court of Tarrant county July 4, 1882. The application alleged that Mrs. Caroline M. Daggett made her will in June, 1871; that she died in November, 1871; that she made E. M. Daggett her sole legatee; that she left certain children and grandchildren, giving their names; alleged that the interest of the Texas & Pacific Railway Company was acquired by purchase as a part of the land which constituted the community property of E. M. and C. M. Daggett, deceased. This purchase was alleged to have been made on the 22d day of October, 1875, as a part of the consideration that the applicant would locate its depot and other property thereon, which it alleged that it did in the year 1876. The application alleged as an excuse for not presenting the will sooner for probate, that, in 1878, the contestants, appellants in this case, instituted a suit in the district court of Tarrant county against E. M. Daggett, claiming an interest in the estate of Caroline M. Daggett, as heirs of Caroline M. Daggett; and that, in 1881, E. M. Daggett instituted an application in the district court of Tarrant county to probate this same will, which was afterwards, by a compromise with Daggett, dismissed, contestants for a partition of the land dismissing their partition suit; that, on the 25th of June, 1881, the contestants sued the applicant for a partition of ninety-seven acres of land (which it had purchased of E. M. Daggett in 1875), which suit it was alleged was still pending against the Texas & Pacific Railway Company; that Daggett, after the compromise he had made with the contestants to dismiss his application to probate the will of Caroline M. Daggett, refused to further prosecute any application to probate the will, though requested to do so by applicant.

The appellants, on the 19th of October, 1883, filed their answer and contest, and demurred to the application of the Texas & Pacific Railway Company filed to probate the said will, in which they maintained that the application disclosed no facts which authorized the probating of the will; and because it disclosed that, if the applicant ever had any right to probate the will, the same was barred by the statute of limitation, and was barred at the time of the filing of the same; and because not made by any person authorized to make an application to probate the same; because it appeared that Caroline M. Daggett departed this life in 1871, more than four years before the filing of the application, and no good and sufficient cause was shown for not probating or applying for the probation of the same within four years from the death of Caroline M. Daggett.

The court overruled these exceptions, to which appellants excepted.

A. M. Carter, for appellants, on the right to probate, cited: P. Digest, II Vol., arts. 5532, 5533, 5499; Ransome v. Bearden, 50 Tex., 119; R. S., art. 1842; Schultz v. Schultz, 60 Am. Decis., pp. 335-362. On the statute of limitations he cited: P. D. Laws, arts. 5545, 5546, 5550; R. S., arts. 1827 and 1828.

Davis, Beall & Rogers, for appellee, on the right to probate, cited: R. S., art. 1828; Ochoa v. Miller, 59 Tex., 462;March v. Huyter, 50 Tex., 243; Redf. on Wills, 3d vol., p. 11,...