Cases argued and decided in the Supreme Court of the State of Texas, during the Austin session, 1874. Volume 40. Page: 408
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136 BEAZLEY V. DENSON. [Austin,
of equity to give some directions in regard to the order and extent
of proof to be adduced by the respective parties to the
issue involved." Redf. Wills, vol. 1, pages 33-34.
Under that practice no invariable rule can be deduced.
The charge of the court, as a general rule, as applied to
deeds and ordinary contracts, cannot be doubted as a correct
proposition of law. But the same presumption does not attach
to wills, as shown by the authorities quoted by appellant's
counsel, for the reason, as there stated, that "' wills are
supposed to be made in extremes, or made when the mind is
to some extent enfeebled by sickness or old age," and on
other grounds. Delafield v. Parish, 25 N. Y. and authorities
there referred to.
It is believed that the correct rule on this subject is laid
 down in the case of Renn et al. v. Samos et al. 33
Tex. 760, quoting 1 Redf. Wills, 31, and 1 Greenl. Ev. sec.
74: "The formal burden of proof in trials directly upon
the probate of the will, whether in the court of probate or
upon appeal, is upon the executor or those who set up the will.
He or they are, therefore, allowed to go forward in the proof
and argument; but when the will has been established and
probated, and an original suit has been instituted in the district
court to set it aside, on account of insanity or want of testamentary
capacity, or for fraud, then the relative position of the
parties is changed, and the party alleging the insanity or
fraud, or a want of testamentary capacity, is put upon the
proof of his allegations, and therefore becomes the plaintiff."
We will notice some of the grounds of the motion for a
new trial and the assignment of errors.
The questions relating to the change of venue, and that
the act of the legislature was not read on three several days,
etc., were made for the first time on the motion for a new
trial after trial on the merits, and cannot be considered in
the form presented. Whether the new county contained
nine hundred square miles was a question that could not be
raised in the suit.
No error is seen in allowing the plaintiff, Denson, to testify
in the cause. He does not come within the exception to the
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the Austin session, 1874. Volume 40., book, 1882; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28533/m1/406/: accessed February 25, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .