Murphy v. Welder

Citations

• 58 Tex. 235
• 1 Tex. L. R. 768
• 1883 Tex. LEXIS 4

Syllabus

<p>1. Practice — Will—Evidence.— An instrument was offered in evidence as an ancient document coining from a proper custody, as follows:</p> <p>“ Friday, Oct. the 18th, 1838.</p> <p>“I, John Toole, of the city of New Orleans, state of Louisiana, bequeath to Mr. Thomas Redmond, or order, of the city of New Orleans, one quarter league of land and one town lot, situated in Aransas, in Power’s colony, Texas, as Martin</p> <p>Lawler has the deeds to it. Signed by my own hand. - his„, “ John x Toole.</p> <p>“Witness, Martin McLoughlin. mark</p> <p>“ Witness, James Toney.”</p> <p>It was offered as the will of John Toole in 1881, and had never been probated either in Louisiana or Texas. The land in controversy had been conveyed by John Toole to Martin Lawler before the date of the instrument offered. It was objected to and excluded on the ground that it was not described, and a copy thereof given in the abstract of title under which the party offering it claimed, and which was demanded by the objector before the trial. Held,</p> <p>(1) That since the record did not show that Toole was dead, the probate of the pretended will, nor did the instrument contain a sufficient description of the property claimed to have been devised by it; coupled with the fact that Toole, b ifore its date, had conveyed the property by deed to one under whom the adversary claimed, it did not appear from the paper that it was the intention of the testator to convey the land in controversy, its exclusion did not prejudice any right of those claiming ‘ under it, and without considering whether the objection to its introduction urged below was properly taken or not, its exclusion was immaterial.</p> <p>2. Heirship.— See opinion for facts held totally insufficient to establish sole heirship.</p> <p>3. Description — Limitation — Stale demand.— A party claiming title by limitation of five years under a recorded deed, read in evidence his tax deed conveying “ one thousand one hundred and seven acres of land