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GOLDMAN ET AL. v. CAMPBELL ET AL. (05/09/52)

May 9, 1952

GOLDMAN ET AL.
v.
CAMPBELL ET AL.



Author: Renfro

RENFRO, Justice.

Ed G. Max, acting temporary administrator of the estate of Mary M. Bowman, deceased, petitioned the probate court of Tarrant County to determine whether a written instrument signed by Mary M. Bowman should be admitted to probate as a will.

Charlotte Goldman and husband and Harry Loyd Max filed their opposition to the admission to probate of said instrument, and alleged that they, with Ed G. Max, their brother, were nephews and niece of Mary M. Bowman and were all and the only heirs to her estate.

An intervention was filed by Forrest Campbell and twenty-one others, asserting they were (a) cousins of Mary M. Bowman, and (b) children of deceased cousins of Mary M. Bowman, and were the only heirs of deceased Mary M. Bowman.

The probate court refused to probate the will. The final order declared contestants to be nephews and niece of Mary M. Bowman, entitled to contest the purported will, found contestants and Ed G. Max to be the only heirs of Mary M. Bowman, and that none of intervenors were heirs of Mary M. Bowman entitled to contest or oppose the will.

Intervenors appealed to the district court of Tarrant County. In the district court all parties stipulated that the purported will was void for uncertainty and because of its being impossible to enforce and carry out. The relationship of intervenors to Mary Bowman was not in dispute. The only contested question before the district court was the relationship between contestants and Mary Bowman.

The jury found that contestants were not nephews and niece of Mary M. Bowman, whereupon the court entered judgment decreeing intervenors to be the sole and only heirs of Mary M. Bowman and entitled to all of said estate, subject only to due and proper administration thereof.

Appellants, contestants below, allege the verdict is so contrary to the overwhelming weight of the evidence that same should be set aside and a new trial ordered.

Mary M. Bowman was the daughter of George and Olivia Bowman. Appellants were the children of Harry George Max. They alleged and attempted to prove that Harry George Max was in reality the son of George and Olivia Bowman, and thus the brother of Mary M. Bowman.

Appellants were unable to produce a birth certificate of Harry George Max. They did produce several witnesses who testified they had heard members of the Bowman and Max families say that Harry George was a son of George and Olivia Bowman, and that he had been allowed to live with the Max family from early childhood because of the poverty of the Bowmans, and that he took the name Max. On the other hand, appellees introduced testimony from witnesses who denied that Harry George was a son of the Bowmans; that the only Bowman children who lived beyond infancy were Mary, Junius and Euday; that the Bowmans were in good financial circumstances and had no reason to place a child with some one else to rear. The testimony above set out, as well as other evidence contained in an unusually long statement of facts, supports the jury's finding that Harry George was not the son of George and Olivia Bowman.

The point of error is overruled.

Appellants contend the court erred in allowing in evidence a written statement by Andrew Bowman, brother of George Bowman, concerning the children of George and Olivia Bowman. The paper referred to was prepared by Andrew Bowman more that forty-five years before this controversy arose. He died many years ago. The paper was prepared for the Daughters of the American Revolution.

The law is well settled that declarations or statements concerning pedigree constitute an exception to the hearsay rule. Such evidence is competent when based upon a statement made by a blood relative having knowledge of the fact, but who is dead or otherwise unobtainable. We overrule the point of error. Burrell v. Westbrook, 163 S.W.2d 695, writ refused, ...


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