Poole v. Jackson, 1 S.W. 75, (1886)
Whether an executed will of a foreign (out of state) probate court can be upheld in the state of Texas.
Poole’s claim to the deed in the chain of title to the land in controversy was “properly ruled out” by the Supreme Court of Texas because the proof of recorded execution from the probate court in which it was executed did not comply with Texas statues.
Plaintiff E.R. Poole appeals against a judgment in favor of L.B. Jackson, defendant. Poole wanted to prove by Jackson that he, Poole, executed a deed and that the deed was in the line of his title to the land “in controversy”. Without the deed Poole lost his suit to Jackson.
The suit started on January 9, 1884 and Poole knowing of the need to have proof of the execution of Jackson’s deed did not try to get the testimony until August 25, 1884. Poole said that he simply couldn’t get an attorney to defend his suit until just a few days from when the interrogatories were sent to Jackson.
Yet, the District Judge Certifies that Poole had attorney representation at least five months previous to the date when Poole’s interrogatories were created and sent to L.B. Jackson by the very attorneys who defended Poole’s suit upon its final trial.
Articles 1854, and 1855 are cited by Justice Willie in determining that there are no such provisions in reference to wills already probated out of the state of Texas that a certified copy of a recorded testimony may be used as evidence in another court.
Justice Willie says:
- It is therefore unnecessary for us to consider whether the “mere filing” of cross-interrogatories to a witness is the proper diligence to procure testimony even if that testimony is extremely important to Poole in getting his land; especially as Poole already commissioned a direct interrogatory of L.B. Jackson. Justice Willie references McFaddin v. Preston, 54 Tex. 406.
- C.R. Jackson’s will was probated outside of the state. Articles 1854, 1855 res adjudicata. The execution of the will is recorded in the foreign probate court, not this one, which is enough evidence “to us” that the will was properly executed. The deed from N.A. Jackson to J.D. Ingle was ruled out because the proof of its record “was not in compliance with our statues.” Then the deed from Ingle to Poole is also “of no use” because it was nullified from the start.
Negligence on part of Poole fully justifies the court to refuse continuance. There is no error in judgment. Judgment in favor of L.B. Jackson is affirmed.