Legal Opinion

Mitchell v. Vickers

Texas Supreme Court

Decided July 1, 1857PublishedCited by 8 opinions

Appeal from Bexar. Tried below before the Hon. Thomas J. Devine. On the 5th September, 1855, Mrs. Amacetta M. Cooley died at San Antonio, in a house where she had then been residing for two years, leaving a sister, Mrs. Emeline V. Wells, since intermarried with James Vickers, as her next of kin; a niece, Susan Wells; and a step-son, Simeon Cooley, whom she had raised from infancy, and who was then a small boy. She was a widow.

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Appeal from Bexar. Tried below before the Hon. Thomas J. Devine. On the 5th September, 1855, Mrs. Amacetta M. Cooley died at San Antonio, in a house where she had then been residing for two years, leaving a sister, Mrs. Emeline V. Wells, since intermarried with James Vickers, as her next of kin; a niece, Susan Wells; and a step-son, Simeon Cooley, whom she had raised from infancy, and who was then a small boy. She was a widow. On the 26th October, 1855, Thomas A. Smith filed a petition in the County Court to establish a nuncupative will of the said deceased, and to obtain letters testamentary…

1Opinion of the Court

Hemphill, Ch. J.

Nuncupative wills are not favorites of the law. But as they are authorized by the statute, they must, when duly proved, be allowed and established. They are hedged round with numerous restrictions, to guard against the frauds for which oral wills offer so many facilities; and it is a well established rule, that strict proof is required of all the requisites prescribed by the law. (2 Greenleaf, 298; 4 Rawle, 46; 20 Johnson, 502; 1 Jarman on Wills, 89; Modern Probate of Wills, 304.)

The provision of the statute (Hart. Dig. Art. 1113,) is essentially a copy from the statute of…

2Cases cited1 opinion

  1. In re the alleged nuncupative will of YarnallSupreme Court of Pennsylvania · 1833

3Cited by8 opinions

  1. Lewis v. Heirs of AylottTexas Supreme Court · 1876
  2. Walker v. FieldsTexas Commission of Appeals · 1923
  3. McClain v. AdamsTexas Supreme Court · 1941
  4. Harp v. AdamsSupreme Court of Georgia · 1914
  5. Kay v. SandlerCourt of Appeals of Texas · 1986

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