Watts v. Holland

Decision Date29 November 1881
Docket NumberCase No. 1023.
Citation56 Tex. 54
CourtTexas Supreme Court


APPEAL from Travis. Tried below before the Hon. J. P. Richardson.

Suit brought by the appellee to establish the alleged nuncupative will of Hiram P. Ferrill, deceased, which purported to devise to Presilla Ferrill a certain designated lot in the city of Austin, and providing that John M. Holland, as executor of his said will, should take possession of the remainder of his property, and with it pay his debts. On the trial of the cause the plaintiff Holland testified as one of the three and only witnesses who were examined or offered to establish the facts relating to the making of the alleged nuncupative will. Mrs. Eliza Watts, sister of the deceased, joined by her husband, contested the probate of the will. The other two witnesses were Adela Ferrill and Anthony Ferrill; Adela was the mother of the devisee, Presilla, and Anthony Ferrill was the husband of Adela and the step-father of Presilla Ferrill. The petition alleged that the nuncupative will was made by the deceased at the house and home of the two last-mentioned witnesses; and also that the deceased had resided with Anthony and Adela for ten days preceding his death. The petitioner alleged in that connection that the deceased had, some months before his death, ceased to reside at his own home, and had during that period boarded with petitioner, Holland; that the deceased, whilst thus boarding at his house, became so sick that he, the deceased, “thinking he could be better cared for, removed and went to the home and house of said Adela and Anthony Ferrill, and there died; that said Ferrill, when taken sick, was not at his house, but was boarding with petitioner, and that during his last sickness he removed to the house of Adela and Anthony Ferrill;” that whilst the deceased was thus sick at their house, he made said nuncupative will, in the presence of the petitioners Holland, Adela Ferrill, Anthony Ferrill, Presilla Ferrill, and “another person, a colored man, whose name and residence,” the petition alleged, was unknown.

The contestant alleged her heirship to the estate of the deceased, and in her answer charged a fraudulent combination between the petitioner, the other two witnesses, and the devisee, to defraud her, by a fabrication of a pretended will, without foundation in truth. The contestant filed exceptions, both general and special, to the original and amended petition of the plaintiffs, which were overruled as to all matters excepted to, save as to the want of the averment that the witnesses to the will were credible witnesses; and on leave granted verbally by the court, the plaintiff amended in that respect, and the contestant excepted.

The court in its charge to the jury directed them in effect to find whether the allegations of the plaintiffs' petition were true or not; or to find a part to be true and a part of them not true, stating their finding as to such facts in their verdict. No direction as to the law of the case was otherwise given to the jury in the charge. It does not appear that either of the parties asked the court to give other or further instructions to the jury. The record contains a bill of exceptions taken by the contestants, showing that they “then and there excepted” to the charge; for what reason, however, is not expressed.

Verdict of the jury finding the facts alleged to be true; upon which the court rendered judgment admitting the will to probate in the terms and words which the petition alleged constituted the will, and the court proceeded to decree the lot of land “to be the property of Presilla Ferrill, in accordance with the provisions of said will, and that the executor shall deliver the same to her, with all the title papers thereto, as soon as the same can be conveniently done; and that the remainder of said property the said executor shall sell and pay off and discharge the just and honest debts of said Hiram P. Ferrill, whenever they are proven and presented to him for payment.”

The assignments of error raise the questions: Whether or not the court erred in its action on the exceptions of the contestants to plaintiff's position; whether there was error in the charge of the court, or error in the judgment or decree as the same was rendered; whether the court erred in refusing to place the witnesses under the rule, at the trial of the cause, when requested to do so by the contestants; and also whether there was error in the exclusion by the court of certain testimony which was offered by the contestants, and in the admission of the testimony of the plaintiff, John M. Holland.

James H. Burts, for appellants.

John Dowell, for appellee.


Real estate cannot be devised by nuncupative will. Lewis v. Aylott, 45 Tex., 190. The judgment of the court, therefore, predicated upon the finding of the jury, in so far as it gave effect to the bequest made to Presilla Ferrill of the lot in the city of Austin, was erroneous. The judgment is otherwise objectionable and erroneous in respect to its adjudication of the title of the lot to Presilla Ferrill. The proceeding was under the statute to probate the will; and it was beyond its scope thus to determine the right of the devisee to immediate ownership, possession and custody of the title papers. If, however, there were no other errors than that for which the judgment ought to be reversed, it would be proper for the supreme court to reform it, and render such judgment as the district court ought to have rendered. Burleson v. Burleson, 15 Tex., 423;Pitner v. Flannegan, 17 Tex., 7;Bracken v. Neil, 15 Tex., 109;City of Brownsville v. Basse, 43 Tex., 441.

Upon the facts found by the jury in their verdict, there would have remained no further matter of fact to be ascertained, and a proper judgment, in such case, would be rendered by the supreme court, correcting the error of the court below as to the legal deductions and consequences which should follow the verdict. City of Brownsville v. Basse, supra.

But we think there was such error committed on the trial of the case as will not permit the verdict which was found to stand, and to constitute a basis for any judgment to be rendered upon it against the contestants. The first ground which the appellants assign as error is well taken; it complains that the court erred in overruling their motion to put the witnesses under the rule which requires them to give their testimony in court separately, and not within the hearing of each other. This rule the contestants asked the court, by motion to that effect, to apply to the witnesses on the trial, after the parties had announced their readiness for trial, and before the witnesses were called to testify; the plaintiff resisted the motion, and the court overruled it, with the remark that he knew of no rule of law requiring witnesses to be put under the rule in civil cases, and that this was a civil case.”

There is such a rule, well recognized in England and America, applicable alike to criminal and civil cases; it belongs to, and is but a part of, a system of wise rules which have been established by the courts through the experience of ages, as best calculated to develop truth, expose falsehood, and to frustrate fraud. The right and duty of courts alike unite to require their observance. They are essential to the procurement of a fair trial, and to the illustration of the definition given of a court: “A place where justice is judicially administered; a place where rights are determined by ascertained and defined legal rules of right and procedure.”

The existence of the rule, as applicable to all kinds of cases, is not, of course, to be confounded with the regulations concerning its application to a given case. The common law rule of evidence and procedure confides to the judge a discretionary authority as to when the rule may be invoked and enforced. In our state no such discretion is extended to the judge in criminal cases; the statute, art. 662, R. S., Code Proc., gives the right to either party to invoke the rule. Brown v. The State, 3 App., 295.

Whilst it is laid down by text-writers, whose conclusions are well supported by authority, that the enforcement of the rule lies within the discretion of the court, high authority is not wanting to maintain the rule as one which parties are entitled to demand the enforcement of. Alderson, B., in Southey v. Nash, 7 C. & P., 632 (1 Greenl., § 432, note 1), expressly recognized it as “the right of either party, at any moment, to require that the unexamined witnesses shall leave the court.”

The manner in which witnesses are to be examined “lies chiefly in the discretion of the judge before whom the cause is tried, it being from its very nature susceptible of but few positive and stringent rules.” 1 Greenl. Ev., sec. 431. And it is added, that “whenever any matter is left to the discretion of one judge, his decision is not subject to be reversed or revised by another.” Id.

Mr. Greenleaf, in the succeeding section, thus announces the rule: “If the judge deems it essential to the discovery of truth, that the witnesses should be examined out of the hearing of each other, he will so order it. This order, upon the motion or suggestion of either party, is rarely withheld; but, by the weight of authority, the party does not seem entitled to it as a matter of right.”

Mr. Phillips, in his work on Evidence, vol. 2, 395, thus lays down the rule, together with the reason for it, stating with it the proper occasion for its application: “It may in some cases be thought advisable to examine witnesses separately and out of the hearing of each other, with a view to obviate the danger of a concerted story among them, and to prevent the influence which the account given by one may have upon another. For this purpose, the court, on the application of counsel, will order the witnesses on both sides to...

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8 cases
  • Keller v. Reichert
    • United States
    • North Dakota Supreme Court
    • July 12, 1922
    ...Rich v. Bowker, 25 Kan. 7; Tucker v. Whitehead, 59 Miss. 594; Whitehead v. Kirk (Miss.) 61 So. 737; Lewis v. Aylott, 45 Tex. 190; Watts v. Rolland, 56 Tex. 54. of a beneficiary under the will, though made in the presence of the testator and after the execution of the will have been held to ......
  • Taylor v. State
    • United States
    • Texas Court of Criminal Appeals
    • May 23, 1917
    ...no right to act, and there is to him confided no discretion outside of the provisions of the statute. Hipp v. Bizzle, 3 Tex. 21; Watts v. Holland, 56 Tex. 54; article 626, C. C. P.; article 3, § 45, of the Constitution; Ex parte Chase, 43 Ala. 303-310; Gibbons v. Ogden, 9 Wheaton, at page 6......
  • Chi., B. & Q. R. Co. v. Kellogg
    • United States
    • Nebraska Supreme Court
    • March 3, 1898
    ...offense are, by the statute, invested with discretion to sequester the witnesses. Section 301, Code Cr. Proc. It was held in Watts v. Holland, 56 Tex. 54, that a party litigant had the right to cause the unexamined witnesses to be sequestered during the trial, and that the refusal of the co......
  • McClain v. Adams
    • United States
    • Texas Supreme Court
    • January 15, 1941
    ...a strict construction has been applied." One of the authorities cited above, 20 Johns. 502, is the Prince-Hazleton case. And in Watts v. Holland, 56 Tex. 54, Chancellor Kent's opinion in the Prince-Hazleton case, was cited in support of the following conclusion announced in the opinion: "* ......
  • Request a trial to view additional results

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