Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1894-12-26

Decisions Rendered ny the Texas
Supreme Court.

ct al. Writ OF error to the Second dis.
trict. VIM. Wallace was soldier oI
the republic and fell at Goilad. Two
bounty warrants were Issued 10 hls
heirs, one for 1920 acres and one 10,
go acres Two headr ghts were lssuf
10 said heirs. the first for one-thlrd of
q league and the second for Two thlru5
Of a iraaue and lab +, he latter being an
augmentp ton certificate. Tn lana 10
Gated under the last nBmsd certificate
Is claimed by two sets OF heirs. Ilalo-
tits claim that the VIM. Wallace VINO
fell at Goiiad was single man ana
came from Georgia, while defendahts
claim that he was a married man ana
came from virginia. The court c arg
ed the Jury: I'm order for p aintins -
be the heirs OF VIM. Wallace, VIM
Wallace must have been the nephew
OF w. e. Wallace Of Crawfoi cou w.
Georgia, and died, leaving either faith
or nor mother. grandfather or nd
mother living" This charge assum -
that VIM. Wallace was single IN n,
and withdrew that issue IRON he jury
II was material fact to be affirmative
ly proved by plaintiffs Mo cover. "a
certificate could not have been anted
to any but head of fami y, ana nat
upon strict proof The court VIII rre-
sumo that the officers did their duty,
and that the proof was made and was
true, until the contrary be- prove '. One
OF the plaintiffs was tho only witness
who testified to any fact or c.rcum-
stance bearing on this issue. and his
testimony was contradictory The
court erred IN refusing the requested
charge upon this issue.
9 The charge was defective In that II
did not inform the jury upon w.ich
party rested the burden OF proof or
that plaintiffs were required to ts-
tabllsh their right by a y e. onder nee
Of the evidence Tn r. was no do lbt
that VIM Wallace fell al Golild. The
question was whether II was tn Geo9-
gia william or the Nirglul1 WIN am.
If the p aiutlffs showed state o facts
which, lf not contradict ~. Woull entl-
tie them to recover. tn W tn = of
offered by defendants tedLi & T. ehoN
that the soldier was from rgln a, II
became a question as to wheth or no.
the evidence prepondtrated In favor
of the plaintiffs II 1t did not tn, vsr-
dlct should have been for the defend
ants. (G7 Tex, 14i)
3. plaintiffs put in evidence the con-
fonts of letter written ~ samuel
Wallace to his sister, X b Gu, q IN '
effect that he had heard reporl that
Win Wallace Cron Nirg MAJ was 90 10
married to two differ m persons Tn
was STRIFE ~ helrsly an irral want an
sh Ju,d have been eXcu1 d. The court
bi1v hHlll - "a " - L'Jr - Wv NN. i''
atoms ~ VIM. Wallace { rough who
the plaintiffs claim to the enc at
IA had a nephew in Texas namei WA
Wallace. who was HI led at Gouad
The evidence shows that IL the deellra-
tons were true. The dec!arant wa the
only htlr ot m party L whom Toe de1-
lorauons related, II was 4 sc.f-sert-
rug decarAton m d. IN the int est 81
| the DEC alAnt hnd shou d nave beell eN-
cludpd plaintiffs were permitted to
prove by VIM. Wallace, one OF o
pa'ntins, that, accord ng T. his tamil
history, VIM. Wallace, the father Of
/ witness, had nephew named VIM
wa lac who went 10 7 Na, In . for
the purpose OF enlistng IN" NJ Nic m
Wur ana was killed ~ lSoo az IN ran
MN massacre me de end tnl II 'f a
the d pos ton of Joseph Wallace that
Samuel Wallace, cousin Of III If
ginlo wallace, wrote a l tier from Go
| liad a few days before the masstcr :
! In which II was stated / at VIM. wal
lace, cousin of the writer, was there
| and was member Of com any fro a.
Alabama, The writer was IN Tex 8
ana was killed at the massn ne. The
court excluded this deposition. The
! evidence admitted ard that tNcll ell
| was admissible FOR the purpose OF .den-
I tiiNins the deceased as membt or
| the family; II was go closely c meet d
] Win the peulEree mat II com 's VII ~
] the rule that admits hears1y cv drl 20
| of this character from n, cessliy. In
| court regards the reasoning IN Sh m
| vs.. Smith, 6S Tex, |, as being m con
/ tlict with the rule here asserted, IN
/ In so far as IL so conflicts that case Is
| oyerrul d,
4. Defendants offered m evidence a
certificate OF james G.llett edluia,a
/ stating In effect that Celluda C. wal
! lace had filed In his office a power OF
! attorney and proof that she was the
| widow and heir Of the WIN. Wallace
| who was a member of WAITS ca ne
| pany, ana that bounty and dona lon
certificates had b1en delivered TO ca G,
| attorney for The administrator Of the
estate Of said Wallace. They also of
| fered TO prove that the brother OF c.
| linda was duly appointed Imiuls ra-
tor OF the estate OF Wallace in RusS
county, No law is found which nu-
thorlzel the udjutant neral 10 give
such n certificate. II was hcarsny an
properly excluded II appears In cv =
dencc that one Hudson located the
land, and that he received the cartitl-
cate from the attorney Of the admin
latrator, The administrator Wood
bine. was shown to BE- The brother 4
Ccrnda The latter was tho widow Of
the Vagina Wall ce Under thl1 stat
OF facts the evidence as to the aini in
| lstraticu was admissible TO show an ag,
! ,t - ,.th. ~. .t.tr, y. 49, 80