Wolf v. Wilhelm , 146 S.W. 216 ( 1912 )

On Motion for Rehearing. We are of opinion that the affidavit of Mrs. Withrow, made in 1899, was properly excluded as evidence. We are also of opinion that the testimony by Sidon Harris of conversations with Mrs. Withrow, wherein she made the statements of heirship to him after he became attorney for her and her brothers and sisters in relation to lands in Fisher Miller's colony, did not render the declarations which Mrs. Withrow made to him admissible. He stated: "When I first had conversation with Mrs. Withrow, or rather Mrs. Sorley, as she was then, in which she told me of her family history, I had no suit for her in which it was necessary to prove up her heirship. The only suits I had for her then were for lands which had been allotted to her on partition of her parents' estate in 1875. Neither she nor I knew anything about the land in controversy in this suit until about 1894 or 1895."

Henry F. Fisher was then dead, and his children, of whom Mrs. Withrow asserted herself to be one, were vested with title to his estate. It is true that it appeared, from what was testified to by Mr. Harris, that the particular land in question was not then known to be a part of the Fisher estate by either Mrs. Withrow or himself. However, descent had been cast on her as to any property Fisher left. As to such property, whatever it was, she was interested in showing herself to be an heir of Fisher. If her statements were true, she had an interest in the land. Jamison v. Dooley, 98 Tex. 210, 82 S.W. 780.

The testimony of Harris is fairly suggestive of the fact that her declarations to him were made with reference to claims involving heirship from and under Fisher.

We think the rule governing this question is expressed in Morgan v. Butler, 3 Tex. Civ. App. 470, 56 S.W. 689 with reference to authorities there cited.

The affidavit and the testimony of Mr. Harris constituted the sole proof offered of heirship under H. F. Fisher with proof of which plaintiff showed no title, assuming that Fisher had in fact acquired title under the deed or deeds from Sahm, which appellee insists the evidence failed to show. We deem it unnecessary to go into that question. The verdict was properly instructed for failure to prove the heirship aforesaid. It was unnecessary to pass upon the other questions discussed in the main opinion.

Motion overruled.

MOURSUND, J., not sitting.