Beazley v. Denson

40 Tex. 416

• Court: Texas Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinions

McAdoo, J.

This is a contested will. case. It-comes from the District Court of San Jacinto county by appeal.

The first point raised by the appellant goes to the jurisdiction of the court below, based Upon the allegation that the so-called county of San Jacinto is-of less dimensions than nine hundred square miles, and therefore the act of the Legislature organizing said county is in violation of Article 12, Section 24, of the Constitution of 1869.

We find no proof in the record of the want of area, and we think we cannot, in a collateral proceeding, pass upon this question.

But the charge of the court is objected to, in that the jury are instructed that “ every man is presumed by the law to possess a sound mind till the contrary be shown by evidence.”

This.is error. In matters of probate, under our law, no such presumption is indulged. On the contrary, in order to establish any will, it must affirmatively appear that .the deceased was of sound mind when he signed the will. (Article 5537, Paschal’s Digest.)

This affirmative testimony would be. necessary if there were no contest; and the law does- not j ustify the imposition of a new rule when, by a contest, the soundness of the testator’s mind is put in issue.

As we can well conceive the jury were liable to be misled by the erroneous instructions just noticed, we must, of necessity, reverse the judgment and remand the cause.

Reversed and remanded..

Opinion delivered October 28, 1873.