Ransome v. Bearden

Citations

• 50 Tex. 119

Syllabus

<p>1. Limitation—Suit to set aside will.—The privilege of bringing suit to set aside a will, on the ground of fraud or forgery, at any time within two years after the discovery of such forgery or fraud, does not extend to a mere donee of an heir. Such donee is not a “person interested in the estate,” as defined by the statute. (Paschal’s Dig., arts. 5542, 5543, 5544.)</p> <p>2. Limitation—Exceptions—Pleading.—An heir bringing suit to set aside a will for forgery, after four years from its probate, the heir laboring under no disability of coverture, minority, &e., and alleging discovery of such forgery within two years before suit was brought, must specify acts of diligence on his part, or acts of fraud by defendant in the concealment of the facts; and the pleadings must show that it was not the fault or negligence of plaintiff that the discovery was not sooner made.</p> <p>3. Same.—The statute (Paschal’s Dig., art. 5543) does not excuse suit when, by use of reasonable diligence, the facts constituting the fraud, &e., could have been discovered.</p> <p>4. Same—Pleading.—The petition must set out the facts relied on to show that, by use of ordinary diligence, the fraud, &c., could not have been discovered; so that the court may determine whether they justify and support such conclusion. The mere allegation that the facts could not have been discovered, &c., is insufficient.</p> <p>5. Pleading.—Sec allegations held insufficient to excuse suit by an heir, brought after four years from the probate of a will, to set it aside, on the ground of having discovered the forgery of the will within two years before suit was brought.</p> <p>6. Pleading— Contradictory averments. — Where, by amendment, averments are made contradicting those of the original pleading of the party, the amendment should correct the allegations so changed so as to present to the court distinctly the extent of such amendment.</p>