
    In re ELLIS’ ESTATE. PARRA et al. v. WYATT et al.
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 23, 1911.)
    Wills (§ 370) — Recobd—Effect of Failure to Make Statement of Facts.
    Where an appeal from the refusal to probate a certain document as a will is without any statement of facts or conclusions of fact by the trial court, the judgment will be affirmed.
    [Ed. Note. — For otner cases, see Wills, Cent. Dig. § 836; Dec. Dig. § 370.]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Proceeding by Jesus Parra and others for the probate of a certain document as a will, opposed by John Wyatt and others. From a judgment refusing probate, proponents appeal.
    Affirmed.
    Loomis & Knollenberg, for appellants. T. C. Lea, W. B. Ware, A. G. Foster, and J. H. McBroom, for appellees.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PETIOOLAS, C. J.

This case had its inception in the county court of El Paso county, Tex., where the appellants offered and sought to probate as a will a certain document, claimed to have been executed by C. O. Ellis before his death. The probate court having refused to probate the same, the proponents appealed to the district court of El Paso county, Tex., which court in its turn refused to probate said instrument as the will of C. O. Ellis, deceased. From this judgment so refusing the appellants appealed to the Court of Civil Appeals for the Fourth Supreme Judicial District at San Antonio, and the case was transferred to this court.

There is before us a transcript of the record, but no statement of facts, and no statement of facts has been filed in this court, except that in the transcript, from pages 12 to 30, is what purports to be the testimony of one J. M. Lujan. We find from a certified copy of an order made by the honorable Court of Civil Appeals for the Fourth Supreme Judicial District that, a motion by ap-pellees to strike out the transcript coming on to be heard, it was granted as to pages 12 to 30 of the transcript; said pages 12 to 30 being stricken out. This leaves the transcript of the record before us without any statement of facts from which we could legally ascertain what the evidence was in the court below.

Appellants’ assignments of error set up that the trial court erred in holding that the instrument offered for probate by the appellants was not a will; that the trial court erred in holding that the instrument was not executed with the formalities required for the execution of wills, and in holding that the delay in presenting the instrument for probate would prevent it being probated. These are not all the assignments of error, but they suffice to clearly indicate the inability of this court to do anything but affirm the case. There being no statement of facts in the record and no conclusions of facts by the trial court in the record, we are unable in any manner to revise his ruling. To illustrate : The appellants contend that the court erred in holding the instrument not a will. We do not know that he so held. He may have held that its execution was not proven. If we assume that he held its execution unproven, we cannot decide whether he rightfully or wrongfully so held. Or he may have held that the instrument was a will and duly executed, but that delay had been so great as that it could not legally be probated. If we assume that he so held, we cannot determine whether he so held rightfully or wrongfully.

The case will therefore be affirmed.  