Kennedy v. Upshaw

Citations

• 64 Tex. 411

Syllabus

<p>1. Forgery — Evidence — Will — Contemporaneous pacts. — A codicil, partially revoking a former will, was offered for probate by K., and contested by O. on the ground that it was a forgery. On the trial in the county court K. offered in evidence a deed of gift, purporting to have been executed by the testator to her children on the same day the codicil was executed. This instrument professed to give to the children of K. part of the property given by the will to a third party, and was witnessed by K. and her husband, as was also the codicil. On the trial in the district court this deed of gift was offered in evidence by C., over the objection of K., in order to show a motive for the forgery of the codicil and as a part of the same transaction. Held, that the paper was admissible in evidence, especially so as there was some evidence tending to show that the signature of the testator was not genuine. The jury might consider all the facts transpiring at the time the codicil was claimed to have been executed.</p> <p>2. Judgment — Evidence, relevancy op.— Some years before the making of the contested codicil, the testator had brought a suit against K. and had agreed to a judgment in her favor for certain lands, and that certain lands should be vested in himself. K. was examined on the stand in reference to this judgment, but no predicate was laid for impeaching her testimony by introducing the judgment and showing that she had made incorrect statements in regard to it. Held, that the evidence was not admissible for the purpose of impeaching her evidence, even if the judgment itself was relevant. The judgment had no relevancy to the issue of forgery.</p> <p>?. Evidence — Will — Execution.— Statements of the testator, made three days after the alleged execution of the codicil, to the effect that he had made no change in the disposition of his property and intended to make none, were inadmissible, since they formed no part of the res gestee, and since there was no questio