Lewis v. Heirs of Aylott

Citations

• 45 Tex. 190

Syllabus

<p>1. Nuncupative will. — Real estate cannot be devised by nuncupative will.</p> <p>2. Probate of will — Witness.—A devisee or legatee under a will cannot prove the will, either written or verbal, without annulling the devise or bequest.</p> <p>3. Construction of statutes. — The “act concerning wills,’’ (Paschal’s Dig., 5361,) the “act concerning conveyances,” (Paschal’s Dig., 997,) and the “act adopting the common law,” (Paschal’s Dig., 978,) being acts passed at the same session of the Congress of the Republic, should be construed together, and so that all parts of said acts not repugnant may stand.</p> <p>4. Same. — The act concerning wills (of March, 1840, Paschal’s Dig., 5174-5361) so far as not inconsistent with the probate act of 1870, was not thereby repealed; and the first section of the wills act, prescribing who may make wills and what may be disposed of,'and the tenth section, prescribing that a bequest to a witness shall be void, are believed to be still in force.</p> <p>5. Witness — Construction of statute. — It is believed that the act of May 19, 1871, (Paschal's Dig., 6826,) removing the disabilities of witnesses on account of interest, &e., applied to ordinary suits in the courts, and it cannot be construed so as to apply to ex parte proceedings, or the proof of wills, deeds, mortgages, &c.</p> <p>6. Same. — The prohibition in the second section of said act, (Paschal’s Dig., 6827,) “that in actions by or against executors, administrators, or guardians, * * neither party shall be allowed to testify,” &c., was not intended to protect the executor, administrator, or guardian, but to protect those beneficially interested; and in a proceeding to probate a nuncupative will, it was improper to allow parties interested to testify to the “statements by or transactions with the deceased,” which facts constituted the will sought to be admitted to probate.</p>