
    SCHNABLE v. HENDERSON.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 16, 1912.)
    1. Witnesses (§ 159) — Competency—1Trans-ACTIONS WITH DECEDENT.
    Under Rev. Civ. St. 1911, art. 3690, providing that in actions by and against executors or administrators neither party may testify against the others as to any statement by testator unless called to testify thereto by the opposite party, and the article shall extend to actions by or against the heirs or legal representatives of decedent arising out of any transaction with decedent, one who was a party to probate proceedings only as devisee and not as heir or representative could testify to declarations by testator that he had cut out part of his will.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 664, 666-669, 671-682; Dec. Dig. § 159.]
    2. Wilis (§ 174) — Revocation—Obliteration by Testator.
    The cutting of a clause out of a will by testator revoked'the will as to such clause under Rev. Civ. St. 1911, art. 7859, permitting a will to be revoked by testator destroying or obliterating the same.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 453; Dec. Dig. § 174.]
    3. Wills (§ 296) — Revocation—Evidence— Testator’s ' Declaration.
    In probate proceedings, evidence that testator during his last illness and while in bed directed witness to get the box containing his will and took a pair of scissors and cut out a clause therein, and burned it and directed .that the will be put in his grip, stating that it was his will, and that he subsequently stated to another on witness’ request that he cut the clause from the will, was admissible to prove revocation as to such clause.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 674; Dec. Dig. § 296.]
    Appeal from District Court, Tarrant County; W. T. Simmons, Judge.
    Application by J. F. Henderson, administrator, to probate a will. From a judgment of probate, Ella Sehnable appeals.
    Affirmed.
    Mike E. Smith, Turner & Bradley, and Theodore Mack, all of Ft. Worth, for appellant. Roy & Young, of Ft. Worth, for ap-pellee.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DUNKLIN, J.

Mrs. Ella Sehnable has appealed from a judgment of the district court rendered without the intervention of a jury, probating the will of Rufus Chambers; the ease having been carried to the district court from a judgment of the county court establishing the same will as the last will and testament of the testator. Application to probate the will, which was in the handwriting of the testator, was filed and prosecuted throughout by J. F. Henderson and A. J. Chambers, who were named in the will as executors. The evidence shows that, as originally written, the will contained a clause devising to Mrs. 'Sehnable, who was in no manner related to him, certain real'estate, but that during the last illness of the testator and shortly before his death he with a pair of scissors cut out that clause from his will. Mrs. Sehnable sought to have the will probated as originally written, but this relief was denied, and the will was probated with tbe original paragraph in her favor omitted. During the last illness of the testator and before the paragraph in question was cut from the will, testator gave to Mrs. Sehnable $500, but appellant' testified that when this was done testator assured her that she would also receive the devise provided for her by the will. However, from the testimony of W. B. Fitzhugh, the court would have been supported in finding that prior to the occasion of the gift to appellant, and on the same day, testator expressed the intention to make such a gift and then revoke the devise in appellant’s favor.

The principal questions presented upon this appeal relate to the admission of the testimony of Mrs. Ruby Hart, the only child of the testator and the principal beneficiary under the will, and the testimony of Sister Arnell. Mrs. Hart testified that during the last illness of her father and while he was confined to his bed in his office he said to witness, “Get. the keys out of my trousers pocket and unlock the desk and hand me a tin box.” Witness complied with this request, and as a result of the joint efforts of the two the box was opened. Her father then took from the box the will as originally written, and, after calling for a pair of scissors which witness handed him, he cut out the item or clause which was missing therefrom when the will was admitted to probate, and then burned it. He then folded the will, handed it back to witness, saying, “Put this in my grip; this is my will.” Witness did as he requested. On the same day the testator was taken to the hospital, where he later died. The grip containing the will was taken to the hospital with him. Witness further testified that on the day following his arrival at the hospital she, in the presence of two nurses, Sister Bruno and Sister Arnell, had a conversation with her father in which the following occurred: “I took the will out of the grip and said, ‘Papa, I want you to tell Sister about this, that you cut it out’; and he said, ‘Yes, Sister, X cut that out.’ When I asked my father the question, 1 held it up and showed it to him where he could see; I was right by bis bed; be saw tbe paper; I held it up; be took it out of my band; be said, ‘Yes, Sister, 1 did; I cut tbis out.’ He then banded tbe will back to me and told me to put it back in tbe grip, wbieb I did.”

Tbe two nurses, Sister Bruno and Sister Arnell, testified substantially as did Mrs. Hart relative to tbe conversation and occurrences at tbe hospital in tbeir presence. Appellant objected to all tbe testimony of Mrs. Hart noted above on tbe ground that as Mrs. Hart was an beir of tbe deceased, a beneficiary named in bis will, and in effect a party to tbe suit, tbe admission of tbe testimony would be in violation of tbe provisions of article 3690, Rev. Statutes 1911, wbieb reads: “In actions by and against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against tbe others as to any transaction with, or statement by, tbe testator, intestate or ward, unless called to testify thereto by tbe opposite party; and tbe provisions of this article shall extend to and include all actions by or against tbe heirs or legal representatives of a decedent arising out of any transaction with such decedent.” Tbe admission of tbis testimony over tbe objection noted is assigned as error.

In the case of Simpson v. Brotherton, 62 Tex. 170, it was beld that a wife, though not nominally a party to a suit instituted by her husband against tbe legal representatives of a deceased person, was not a competent witness to testify to transactions between her husband and tbe deceased because the community interests of herself and husband were involved in the controversy, and hence tbe wife was essentially a party to the suit. To tbe same effect was tbe decision in Newton v. Newton, 77 Tex. 508, 14 S. W. 157. But in tbe decision last cited it was further beld that legatees and devisees are not included in the classes of persons whose testimony is excluded by tbe statute. We may concede, then, for the sake of argument, that Mrs. Hart was a party to tbe suit, yet ber testimony is not inhibited by tbe statute since she was a party, not as an beir or legal representative, but as devisee and legatee, and tbe only party opposed to ber in the suit was appellant, who likewise claimed as a devisee and not as an beir or regal representative.

To tbe testimony of Mrs. Hart and Sister Arnell relative to what was said and done during the conversation between Mrs. Hart and ber father at tbe hospital, appellant urged tbe further objection that such testimony tended to prove the revocation of a portion of tbe will, to properly do which tbe same solemnities would be required as are required by law to execute tbe will in tbe first instance, and that tbe testimony was inadmissible to establish such a revocation. Following articles 7857 and 7858 of Revised Statutes 1911, which prescribe the solemnities with which wills must be executed, is article 7859 which reads: “No will in writing, made in conformity with tbe preceding articles, nor any clause thereof or devise therein, shall be revoked, except by a subsequent will, codicil or declaration in writing, executed with like formalities, or by tbe testator destroying, canceling or obliterating tbe same, or causing it to be done in bis presence.” If the clause in Mrs. Schna-ble’s favor contained, in tbe original will was cut out as testified by Mrs. Hart, then that provision was revoked in a manner prescribed by the statute last quoted.

That tbe declarations of tbe testator made at the hospital, especially under tbe circumstances stated, were admissible to prove such revocation is settled by our Supreme Court in McElroy v. Rhink, 97 Tex. 147, 76 S. W. 753, 77 S. W. 1025. Furthermore tbe testimony of Mrs. Hart that ber father cut out of tbe will the paragraph in favor of appellant while at bis office and before, be was taken to tbe hospital was not controverted by any witness, neither did appellant object to the admission of the testimony of Sister Bruno who fully corroborated Mrs. Hart’s testimony relative to tbe conversation with ber father at tbe hospital in tbe presence of tbe two nurses. No testimony was introduced to controvert tbe three witnesses named in tbeir testimony relative to tbe conversation at the hospital when testator told tbe nurses be bad cut out tbe paragraph from tbe will, and, if the entire testimony of Mrs. Hart relative to the conversation and acts of tbe testator at bis office before be was taken to tbe hospital and also to the conversation at tbe hospital be eliminated, we still have tbe uncontroverted testimony of tbe two nurses which, of itself, establishes tbe revocation of tbe paragraph in appellant’s favor contained in tbe will when it was first written.

Among others, tbe trial judge found tbe following facts with reference to tbe act of testator in cutting tbe paragraph mentioned above from tbe will as originally written: “That said change was made by deceased voluntarily, and that same was done without any undue influence on tbe part of any one, and was done at a time when deceased was in possession of bis reason and conscious of bis acts and was at said time of sufficient mental capacity to make bis will and to leave his property as be saw fit and desired.” These findings were sustained by tbe evidence, and we approve them.

Tbe judgment is affirmed.  