Franks v. Chapman

64 Tex. 159

• Court: Texas Supreme Court
• Decided: July 1, 1885
• Docket: Case No. 5460
• Status: Published

Opinion

Stayton, Associate Justice.

On the former appeal of this case, it was held that the district court had. jurisdiction, the matter having been sent to the district court on account of the'disqualification of the county judge to hear and determine the validity of the probate of the will formerly made in the county court, and also to probate the will if proper proof of its due execution was made, should the former probate for any cause be found invalid. Franks v. Chapman, 61 Tex., 576; Const., art. 5, sec. 16.

Ifc was also held that such time had not elapsed as would bar the right to probate a will under the facts existing.

As the court revoked the former probate of the will, and as all the parties in interest, as shown by the appellants themselves, were before the court in this case, it is unimportant whether the proper notice of intention to probate the will was given before it was originally admitted to probate.

The evidence of the witnesses upon whose testimony the will was probated was sufficient to authorize the finding that the paper was duly executed and published by G-. W. Chapman as his last will; and it is of no importance that the witnesses who signed the will as such at the request and in the presence of the testator signed their names in the attestation clause, and not after it. 1 Jarman on Wills, 216 et seq.; 1 Redfield on Wills, 231 et seq.; Washburn on Real Property, 622.

The fact that A. G-. Martin, who was the clerk of the county court, when called upon by Chapman to witness the will, attached thereto his official certificate of the acknowledgment of the due execution of the will by the testator, does not affect the validity of his signature to the will as a witness. Murray v. Murphy, 39 Miss., 219.

There is no error in the judgment, and it is affirmed.

Affirmed.

[Opinion delivered May 12, 1885.]