Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-05-25

correctly admitted in evidence a portion of n
sworn bill in equity brought by plaintiff against
pose of resembling the contract here sued upon
because McAnGity was not bound by it. etc. We
think this portion of the bill sworn to by
plaintiffs was properly admitted as proof of ad-
mission of the fact that McAnulty was not liable
But appellant was also properly permitted to
explain the matters in said pleading Wharton
dispositions Photographic copy of the duplicate
of the original contract, which bore McAnuity's
name as one of the witnesses. (McAnuIty had
denied knowledge of the existence of the cor
tract until long after the execution.) McAnulty
denied the signature being his own. Plaintiffs
to contradict this, offered memorandum on the
original contract without signature or proof of
execution of said memorandum to the effect
that McAnulty was witness to the duplicate
contract. This was properly excluded. In this
connection, it would have been error if the court
had admitted the mere opinions of witnesses to
testify as experts as to the genuineness of Nc
Anulty's signature. And further, the photo
graphic copy, although admitted without obiec-
ton, could not have been used for the purpose
otproving signature by comparison. RAJ Tex
504. Reversed and remanded.
William Logan ct al. VS.. George W. Glover,
ct al. from Dallas county; opinion by Stayton,
- In TINS suit by appellants, the heirs of
Thomas Logan, for strip of land of Thomas
Iogan's league, the defendants offered in evil
dence paper pqrporting to be the will Of Thos.
Logan, who died in 1915, but nothing was offered
to show that such will had been admitted to pro-
bate. This will was offered for the purpose of
showing that the executor under it had a right
to establish the line as he did, which brings the
strip here in controversy. The objection to the
introduction of the will should have been sus-
tanned, as the decree probatingit had not been
produced, nor its destru ction had been proved.
l66 Tex, 800; So Tex, 30; 50 Tex, 23.1 And
even if the probate had been shown, this would
not have authorized the executor to run q line
different from that in the grant, as that would
have involved the power to give away the estate.
The introduction of the viii was calculated to
mislead the jury as TO the power of the execu-
tor. II the executor, acting as such had estab-
lished the line where it is claimed he did even
II without authority, the subsequent recogni-
ton OF that line as the true line by the heirs with
knowledge of the facts, ought to bind them
If the recognition was such as would bind them,
had the line been recognized by their ancestor,
but not by him established by paroI agreement.
The record does not show any such recognition
unless il be on part of William Logan. There
was no parol agreement establishing the line
of the Logan grant, when defendants say it
was established, and in the absence of this there
must nave been a recognized line with reference
TO which the plaintiffs have acted. or in which
they have acquiesced. But none of the heirs
excepting probably William Logan had knowI-
edge that the executor had established a line,
and they cannot be held to have acquiesced in
that of which they had no knowledge. The
charge of the court on the establishment of the
line by the executor and acquiescence in it by
the heirs, was improper as to all the heirs eX-
cepting William Logan. That charge was also
too general in that it did not define acquiescence.
Reversed and remanded