B. Renn and others v. E. Samos and others, 33 Tex. 760

Ogden, J. This suit was brought to the district court, under

Article 1262, Paschal’s. Digest, to contest the will of O. Renn, deceased, for alleged fraud and undue influence in the conception and execution of the same; and on an examination of the record we discover an error in the trial below which is fatal to the judgment, and will require a reversal of the same. On the trial the alleged will of O. Renn was proven up by the depositions of the subscribing witnesses, who testify as to a certain paper purporting to be the will of Renn, without, in any manuer, conveying to the court an identity of the paper about which they testify.

As a general rule, all written documents, in order to be proven, must be produced in court, together with the witnesses who are to identify and prove the same, that the court and jury.may by inspection be assured of the existence and genuineness of the instrument to be proven (Starkie Ev., 454); and proof of the identification should in all cases be first made before the admission of any other testimony in relation to a written instrument.

And when the law does not in express terms excuse or dispense with that identification, by personal testimony, a written document cannot be legitimately received by the court or' considered by the jury. When an instrument of writing is attempted to be proven up by deposition, the usual and recognized practice of proving the identification is for the deponent to attach the instrument to his answer, marking and describing the same; or for the officer before whom the deposition is taken to certify that it is the identical instrument presented to the witness, and about which he testified. (Gxeenl.

Ev., 3 vol., p..271; Redf. on Wills, 2 vol., p. 31; 9 Texas, 494, and 11 Texas, 38Q.) But if no identification is made, so that the court and jury may know the precise instrument about which the witness may have testified, no such instrument can he legitimately before the court or considered by the jury.

In the cause at bar the record shows that the only proof offered in the district court, to establish the paper purporting to be the will of Oasper Renn was the depositions of Wiggins, Jackson, Rains, Wightman and McDougal, all of whom testify in relation to a certain paper which they say is the will and codicil of O.

Renn; but their testimony is taken before the sitting of the court that tried the cause, and in a different county from that in which the cause was tried, and there is no evidence that the paper about which the witnesses testified is the same that was permitted by the court to go to the jury as the proven will and codicil of C. Renn. This paper was received by the court as sufficiently identified and proven as the will of Renn, notwithstanding the objections of counsel for appellants.

We are therefore of the opinion that the court erred in overruling appellants’ exceptions to the reading to the jury-the fourth interrogatory propounded to Wiggins, Jackson, Rains, Wightman and McDougal, and their answers thereto, and indeed in permitting any portion of their depositions to go to the jury, until the will had been produced in court and identified; and for these errors the judgment must be reversed and the cause remanded.

And as this cause will again be tried in the district court, we deem it proper, in order that the same may be finally and equitably determined in that court, to notice some of the many questions which arose on the trial below. The first question raised was as to the relative position the parties should occupy, whether as plaintiffs or defendants.

The authorities have not been entirely uniform in relation to this question, but it is believed now to be a well settled principle of practice that “ the formal burden of proof in trials directly upon the probate of the will, whether in the court of probate or upon appeal, is upon the executor or those who set up the will. He or they are therefore allowed to go forward in the proof and argument.” (Redf. on Wills, 1 vol., p. 31; Greenl.

Ev., 1 vol., pp. 73-7.) But when the will has been established and probated, and an original suit has been instituted in the district court to set it aside, on account of insanity or want of testamentary capacity, or for fraud, then the relative position of the parties is changed, and the party alleging the insanity or fraud, or a want of testamentary capacity, is put upon the proof of his allegations, (Redfield on Wills,

part 1, pp. 31—3,) and therefore becomes the plaintiff. On an examination of the whole testimony in this cause, we are at some loss to reconcile the verdict and judgment with the facts on legal principles. There are a series of suspicious circumstances hanging over nearly every fact proven in connection with the written instrument which is the foundation of this suit.

In the first place, the testator, being a single man without a family of his own, bequeaths by far the greater portion of a very considerable estate to entire strangers, to the exclusion of brothers and sisters, or sister, without any cause whatever.

It is true, that under our present laws a person with a sound and disposing memory may, by his last will and testament, dispose of his estate to strangers, to the exclusion of kin or relatives; yet all authorities agree that such a bequest is a circumstance which should arouse the suspicion and strict scrutiny of the court whose authority is invoked to execute the bequest, and more especially, where the testator has, as in this case, excluded his relatives without any cause. The will by which this suspicious bequest was made, was in the handwriting of Brittain, one of the principal legatees.

This of itself, independent of all other circumstances, should, cast such a suspicion. upon the instrument as to require an explanation by proof. (1 Curtis, 687; Jarmon on Wills, 42; and Vickery v.

Hobbs, 21 Texas, 574.) In the latter case, Justice Wheeler says : “ Where,' as in this case, a will is written by one who takes a benefit under it, that is a circumstance to excite stricter scrutiny, and require stricter proof, not only of volition and capacity, but that the testator knew the contents of the paper he was signing.” In the case at bar, we are constrained to say, that instead of requiring stricter proof than the law under ordinary circumstances would have demanded, the jury seem to have been satisfied with much less and more unsatisfactory proof of volition, capacity or knowledge on the part of the testator.

These two facts, that the will was written by a principal legatee, and that the estate was devised to strangers, greatly increase the suspicion attached to each, and together they form such strong suspicions against the validity of the will as should require undoubted proof of volition and capacity, and that the testator knew the contents of the will, and furthei-, a full explanation, by proof, why the testator devised his estate as he did, and also why the legatee was called upm to write the will which gave an estate to himself.

The testimony of the subscribing witnesses, in detailing the facts which occurred on the execution of' the will, had that testimony been properly before the court, wholly failed to. prove any act of volition, and but little consciousness on the part of the testator; as he neither said nor did anything excepting in response to the interrogations or suggestions from one of the witnesses, and the responses were more suggestive of a want of volition and consciousness than anything else.

There are other circumstances of suspicion connected with this cause which need not now be noticed further than to say, that when there.are so many circumstances of suspicion connected with the drafting and execution, the object and purpose of a will, it becomes the duty of the court to strictly ■■ scrutinize the whole matter; and if the case is to be finally determined by a jury, then. to charge the law in regard to every suspicion, and to see that those charges are regarded by the jury.

The charge of the court in this case, in relation to the admissions of one of the co-defendants, is in the main a correct enunciation of the law on that subject, but we cannot fully endorse that portion of the charge in relation to conflicting statements of the party making admissions.

We think the true rulé is, that where a party has voluntarily admitted a debt or confessed a crime, that admission should be taken as true, regardless of contradictory statements made by the same party at a different time, unless he proves that the admissions or confessions were made tinder a mistake, or that they were absolutely untrue. (Starkie’s Ev., page 52; Ray v. Bell, 24 Ill. R., 444.) The admissions of Samos during his lifetime in regard to the fraud or undue influence in procuring the will of O.

Renn, or the amount and character of property belonging to- the estate, and not reported by the executors, should have been received by the court and jury as testimony to estop his representatives from claiming any benefit under the will, and uncontradicted, should have been held as evidence against the validity of the will itself; and the rights of the appellees under the will must be determined by the facts which go to' connect Samos, Yeith .and Brittain in the fraud or undue influence, if any, in procuring the will, and which may have been confessed by Samos; and if Samos, Yeith and Brittain combined or confederated together to procure by fraud or undue influence the execution of the will then they are all equally guilty and should be so held.

The judgment is reversed and the cause remanded. Reversed and remanded.