Renn v. Samos

Citations

• 33 Tex. 760

Syllabus

<p>1. As a general rule, all written documents, in order tó be proved, must be produced in court, together with the witnesses to identify them, that the court and jury may by inspection be assured of the existence and genuineness ot the instrument; and the proof of the identity should be first made, before any other evidence in relation to the instrument is admitted, except in eases where the law has expressly dispensed with the identification oi instruments.</p> <p>2. When a written instrument is to be proved by depositions, the usual and recognized method of identifying it is by the deponent attaching it to his answer, marking and describing it; or for the officer taking the deposition to certify that the attached instrument is the identical one presented to the deponent, and about which he testified.</p> <p>3. If no identification be so made that the court and jury may know the > precise instrument to which the testimony relates, the instrument cannot be legitimately before the court or jury.</p> <p>4. In a trial directly upon the probate of a will, whether in a court of probate or upon appeal, the burden of proof is upon the executor or those who set up the will.</p> <p>5. But when a will has been established and probated, and an original suit has been instituted in the district court .to set it aside, for want of capacity in the testator, or for fraud, then the relative position of the parties is changed, and the party alleging the incapacity or fraud is put upon the proof of his allegations.</p> <p>6. Though a testator of sound and disposing memory may, under our present laws, devise his entire estate to strangers; yet all authorities agree that such a bequest is a circumstance which should arouse the suspicion and the strict scrutiny of the courts, and especially so when, as in the present n case, there was no apparent cause for the disherison of the decedent’s relatives.</p> <p>7. That the will is in the handwriting of one ol the principal legatees is anothe