George R. Summerhill et al. v. Tempe Darrow et al., 94 Tex. 71

BROWN, Associate Justice. This case was before us upon certified questions which embraced all of the propositions presented in the plaintiffs’ petition for writ of error, except those hereinafter discussed. We deem it unnecessary to review the questions heretofore determined, but refer to our former opinion, which will be found in Darrow v. Summerhill, 93 Texas, 92. The petition for writ of error was granted upon the ground that the Court of Civil Appeals erred in finding that the claim of Tempe Darrow was not barred by the statute of limitations, which involves these questions:

(1) Were the recitals in Mrs. Swoope’s will competent evidence to prove that Tempe Darrow was a married woman at the time her cause of action accrued ?

(2) Were the recitals sufficient evidence to establish the fact of coverture at the time the cause of action arose and at the time the suit was instituted? The facts pertinent to this question, briefly stated, are that James Park, who resided in the State of Tennessee, sold a tract of land in Texas—the same upon which the lien is here sought to be foreclosed— to George R. Summerhill, a citizen of Alabama, reserving a vendor’s lien and taking several notes to secure the purchase money.

One of the notes being unpaid, Park sued Summerhill in a circuit court in the State of Alabama and recovered judgment against him for the amount of the note. Subsequently, an execution issued upon the judgment and Summerhill sued out an injunction to restrain the enforcement of it, giving a bond under the laws of that State upon which John Peters became a surety. After Peters became a surety, he conveyed his property to Elizabeth Swoope, she assuming to pay all of his debts.

John Peters died, and, after his death, the injunction was dissolved and steps were taken, as required by the laws of that State, to enforce the injunction bond against the principal and sureties; Mrs. Swoope was liable for the debt, having in her possession the property conveyed to her, and she, making her will, devised the property to Tempe Swoope Darrow, her daughter, who paid the debt in the year 1894, and, on the 25th day of January, 1898, intervened in this cause, setting up the claim against George R.

Summerhill for the amount of money paid and seeking to foreclose the vendor’s lien upon the land claimed by the defendants. Mrs. Swoope made her will on the 10th day of November, 1890, which was probated on the 12th day of January, 1891. The will was introduced in evidence and contained these recitals: “As to all the rest and residue of my estate, both real, personal, and mixed, wherever situated, I give, devise, and bequeath the same to my only daughter and heir, Tempe Swoope Darrow, and her heirs foreverand “I hereby appoint my brother, Mark R. Haley, and my son-in-law, George M.

Darrow, to be the executors of this my last will and testament.” The first question presented is, could the coverture of Mrs. Darrow be proved in this suit by the recitals in the will of her mother?- The English courts and some of the courts of America restrict the use of such evidence, in the proof of death, marriage, and the like, to cases in which a question of “genealogy” is under investigation. 2 Taylor on Ev., sec. 645; Westfield v. Warren, 3 Halst. (N. J.), 245.

Our Supreme Court has acted upon a much more liberal doctrine with regard to hearsay testimony in proof of such facts, and has adopted the rule that the declarations of relatives are admissible to prove the facts of death, birth, and marriage in all cases where they are the subjects of investigation, under the same limitations as would apply in case of pedigree,—that is, such declarations must have been made before the beginning of the controversy and the declarant must be dead at the time the evidence is offered. Primm v. Stewart, 7 Texas, 178; Collins v. Grantham, 12 Ind., 442; Swink v. French, 11 B. J.

Lea, 78; Brookfield v. Warren, 16 Gray, 174; Wilson v. Brownlee-Homer Co., 24 Ark., 588; 1 Greenl. on Ev., 16 ed., sec. 114g. In the case of Brookfield v. Warren, the court said: “If this evidence is admissible to prove such facts at all, it is equally so in all cases wherever they become legitimate subjects of judicial inquiry and investigation.” It will not be denied that if this were a controversy in which Mrs.

Barrow’s marriage was an important fact in the pedigree of one of the litigants, the recitals in her mother’s will would be competent testimony; and the court of Massachusetts is logical when it says that the testimony which will prove a fact for the purpose of sustaining pedigree will prove the same fact for the purpose .of sustaining any other right depending upon the same fact'.

We .conclude, therefore, that the recitals in the will being in conformity with the limitations which the law applies to such evidence,—antedating the controversy and the declarant being dead,—were competent to prove the marriage of Tempe Darrow and George M. Darrow. The will does not declare directly that Tempe Barrow and George M. Darrow were husband and wife, but states two facts:

(1) That Tempe Swoope Darrow is the only daughter of the testatrix, and (2) that George M. Barrow is her son-in-law. From these facts, the conclusion is natural that Tempe Swoope became Tempe Swoope Darrow by intermarriage with a man by the name of Darrow, that George M. Darrow became son-in-law to the testatrix by marrying her daughter, and as Mrs. Swoope had but one daughter, she could have but one son-in-law, which necessarily results in the conclusion that Tempe Swoope and George M. Darrow were husband and wife at the time the will was executed.

Under our former decision, Tempe Swoope Barrow was, by her payment made upon the judgment against George R. Summerhill, entitled to be reimbursed by him or his estate in the sum that she paid upon the said judgment, and having discharged that debt, which was .secured by the vendor’s lien upon the land in controversy, was subrogated to that lien. Her cause of action arose at the date of the payment by her in 1894, and, being a married woman when the payment was made, the statute of limitations did not run against her.

But it is claimed that the recitals in the will do not establish that she was a married woman at the time she. made the payment nor at the time she intervened in this suit. It is a familiar principle of law that when a status such as marriage is once established, it is presumed to continue until the contrary is proved. The proof showed that Mrs. Darrow was a married woman at a time antedating her cause of action, and she and her husband joined in the plea of intervention as husband and wife. There is nothing to show a cessation of the coverture in the meantime.

The evidence of the coverture of Tempe Darrow is undisputed,, and the- Court of Civil Appeals did not err in reversing the judgment of the District Court and entering judgment for Tempe Darrow, foreclos- • ing the lien upon the land in controversy, and the said judgment is . therefore affirmed. . Affirmed.