Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-12-17
THE HIGHER COURTS.
Present Tyler Sitting-Important North
.. Texas Cases Passed Upon.
SUPREME COURT.


TYLER, TEX, Dec. IF. and E.
Hopf VS.. the State of Texas; appeal from
Dallas. This is an appeal by appellants
from a refusal of the district court of
Dallas county to reverse the finding of
the probate court of said county refusing
appellants the right of probating a GER
tain paper, offered as the last
will and testament of Martin Nieman.
The probate of the will was resisted
on behalf of the state by the county
attorney, alleging that said Nieman
was not of sound mind when he made the
will; thar it was procured by undue in
fiuence; that it was not wholly written
by said Nieman, or attested by, two credi-
bic with esses, subscribing their names in
the testatOr's presence. Held: i. The
evidence fails to support the finding that
Nieman was mentally incapable of max
ing a will at the time of the execution of
the instrument in question. 2. Where
subscribing witness is out of the country,
and in the absence of facts sufhclent
to preclude it, it should be presumed that
his name was placed on the will is an at
testing witness, and in the presence of
the testator and at his request. 3. None
of the statutory provisions relative to the
probate of wills, forbid the introduction
of other than statutory proof; and cases
may arise in which it would be the duty
of Il court to probate will, i'll opposition
to the testimony of the subscribing wit
nesses. Cases have arisen in which wills
were admitted to probate, when the posi-
tive testimony of the subscribing witnesses
would have defeated this . 50 n Y. 329;S3
n. Y. 594; 2 Barbour's CHI. SO; 6 Am.
Law Reg. 341; % n. Y. 1925; "a n. Y.
50. 4. No reasons are shown which en-
titled the state to contest the probate,
and an escheat can not be declared i'll Il
proceeding to probate viii. 1t seems,
however, that no objection was offered in
the court below as to the right of the
state to contest same. Because the find
ing of the court below is not supported by
the evidence the judgment can not stand.
Reversed and remanded. Stayton, G. j.
A. II . CarrIgan VS.. r. B. Temple, ad-
ministrator; appeal from Fannin. Suit
by appellant against appellee as admins
TRAITOR of the estate of Stephen Moore, to
recover the unpaid balance of a promis-
sorry note. 1t appears that Moore died
in Arkansas; that he resided there at the
time of his death, as did, and does, ap-
pellant. Appellee qualified rs admins
traitor of Moore IS estate in Texas. 1t ap-
pears that there had also been an admin
istrator of Moore's effects situated III
Arkansas. Held: 1t is not shown that
the administrator defendant has as
sets i'll his hands which were
ever assets in the hands of the admins
TRAITOR appointed i'll Arkansas; and. it
must be deemed well settled that judg-
ment rendered against an administrator
In another state furnishes no right of
action against an administrator appointed
by the courts of this state in the Obsence
of such showing. 10 Tex, 453; 2S Tex.
5O3; Howard, 4G7; 6 Howard, 81; 2
Rowle, 1876; Is Howard, IS; 8 Allen,
2GI; 10 Allen, As; Nd. 2l1. 2. As
to the statute of limitation, the law of
this state, and not that of Arkansas,
would govern. No error. Affirmed.
Stayton, C. ].
J. d. Latimer VS.. F. NJ. Henry ct al.
appeal from Bowie. Motion to affirm
on certificate. The motion to affirm
complying fully with the law in all re-
spects, and there being failure of ap-
pellant to duly prosecute his appeal, the
motion will be sustained. Affirmed on
certificate. Stayton, C. j.
George W. Henslee ct al. VS.. j. L.
Henslee; appeal from Hunt. On mo-
ton for rehearing. At former day of
the term this case was affirmed on certit- |
cate, and consideration of the
motion for rehearing, it is ad-
judged that nothing therein will |
change the opinion of the court heretofore |
rendered. That appellants have prose-
cuted a writ of error is no reason why the |
judgment should not be affirmed on GER |
tifcate Motion overrulcd. Stayton,
c. j.
r. d. HarrelI VS.. R. J. and B. NJ.
Jones; appeal from Bowie On motion |
to affirm certificate Appellant not hav-
ing duly prosecuted his appeal as the law
provides, and appellees having made n
legal showing for affirmance on certifi-
cate, the motion will be sustained. At
firmed on certificate. Stayton, c. J.
Gulf, Colorado and Santa Fe Railway
VS.. j. L. Edwards, appeal from Ellis.
On motion for rehearing. l. A state
ment i'll n motion for a rehearing, to the
effect that unavoidable absence and
other engagements of counsel, - there be-
ing no showing as to how the said alb
sence was unavoidable, and counsel
otherwise engaged, is no sufficiet excuse
for not prosecuting an appeal, and espe-
cially where there is no offer to file a
transcript during the present term of
court. Motion Overruled. Stayton, C. J.
The State of Texas ct al. VS.. Taylor s.
Kelly ct al; appeal from Williamson.
Appellees are lessees ofswaterworks of
Georgetown. The assessor of William
son county assessed the waterworks prop
erty Owned by the city, as the property
of appellees. This suit was to restrain
the tax collector from collecting said tax
from appellees. Held: Under Art
1851 r. s., one holding a leasehold es-
tate can not be taxed upon the value
of the lands leased, but only on the value
of the leasehold. 70 S. W. SO. Affirmed.
Stayton, C. j.
Granville Merrill VS.. W. H. Taylor ct
al. E; appeal from Gregg. Suit by appel
liant to recover on five vendors lien notes
and to foreclose vendors lien. Appel
lees plead failure of consideration be-
cause of the false representations, etc.
of appellant as to the value of the land +
and improvements in controversy. l. /.
The court erred in referring to testi- r
mony ass. to appellant s strategy
in preventing y fulksy investigator
In reference tpshe PREMISES: when THIS
was not allegeac In the snecESc acts Of
frand this was efaitte4- 2.TEs charge,
of the c5UrfAsssle lied TO give gny effect
to TIE investigation made by