Welder v. McComb

<p>1. Probate of Foreign Will—Conveyance Before Probate.—A will probated in another State directed the making of an allotment and division of the property, and its conveyance to the devisees, and this was done before the probate of the will in Texas, where the land was situated. Held, that although the will could not be used as evidence in the courts of this State until probated here, yet that such conveyance was valid, since the devisees took by force of the devise in the will, and not through the conveyance of title.</p> <p>2. Same—Conveyance Where Authority of Court is Hot Requisite.—Where the will authorizes the exercise of the power immediately upon the death of the testator, the subsequent probate of the will simply furnishes the authentic evidence of the power, and the case is different from that of power usually given to executors to sell for purposes of administration, which may require the sanction of the court before it can be exercised. Mills v. Herndon, 60 Texas, 353, distinguished.</p> <p>3. Trespass to Try Title—-Variance—Equitable Title in Another Person than Alleged.—Plaintiffs sued in trespass to try title, alleging that they held the legal title in trust for one B., a minor, and the father of B., as his next friend, joined in the petition. The proof showed that the trustees, under the terms of a will made twelve years previously, held the title in trust for M., and did not show that M. was dead, or that B. was in any way connected with the equitable title. Held, that the variance was immaterial, and plaintiffs were entitled to recover against the defendants, who were not connected with the equitable title.</p> <p>4. Landlord and Tenant—Estoppel—Vacant Public Lands.—A lessee of land which proves to be vacant public domain is not estopped to deny his lessor’s title, since such land is not the subject of lease without right from the State.</p> <p>5. Probate of Foreign Will—Certificate.—Objection to the authentication of the probate of a will in another State—that it consisted of only one certificate, made "by the same officer in his capacities of j udge and of clerk—is not well taken; but if snch certificate were defective, it does not follow that the order of the Texas court admitting the will to probate would on that account be void and subject to collateral attack.</p> <p>6. Charge of Court—Limitations.—"Where defendants went into possession as tenants of plaintiffs, and the evidence did not show that they had openly repudiated such holding, and brought home notice of an adverse possession to plaintiffs, it was not error to refuse to submit the issue of limitations to the jury.</p> <p>7. Survey—Presumption—Charge of Court.—A charge, that the presumption is to be indulged that the surveyor actually ran the lines of a survey, would in many cases be an invasion of the province of the jury, and the giving of such charges is not considered to be the correct practice. '</p>