BANNER U. IOULTON. 5
Hannan, Jr., and others v. Mounron and others.
(Uwcuit Uaurt, M D. Texas. January Term, 1885.)
WILL—INTENTION—EXTRINBlC Evrn1n~:cn—L.irnm— Amsieurrr.
A will contained the following devise: *·l will to J. W. H., Jr., J. P., and
J. P., Jr., my tract of land, containing near 1,500 acres iirst-rate land, lying,
I believe, in Ellis county, Texas." At the date of his will, and at the time of
his death, the testator was the owner of a head-right certificate for 1,476 acres,
but he never owned any land whatever in Ellis county, and he never owned
any lands elsewhere in Texas to which the devise applied. Held, that parol
evidence was not admissible to show that the testator supposed that such cer-
tificate had been located in Ellis county, making him the owner of the lands
covered thereby, or that it was his intention, as shown by his declarations and
conversations, to devise this certificate, if it should turn out that it had not been
located, and that he was advised by the attorney who wrote the will that the
devise would be elfectual to carry out such purpose.
In Equity. Final hearing upon pleadings and evidence.
John L. Henry and John D. Park, for plaintiffs.
Sawnie Robertson, for defendants.
Before Woons and MIGGORMICK, JJ.
Woons, Justice. The bill was filed January 27, 1882, for a decree
to establishphe title of the plaintiffs to several tracts of land in the
state of Texas; one of 586 acres in Ellis county; one of 640 acres in
Falls county; and one of 250 acres in Clay county, and to declare
that the deeds under which the defendants claimed title to said lands
were null and void. The plaintiffs asserted title to the lands, as de-
visees under the will of James Park, deceased, who died September
4, 1866, at his domicile, in the county of Williamson, in the state of
Tennessee. The devise under which the plaintiffs claimed title was
in these words:
"I will to John W. Hanner, Jr., James Park, and John Park, Jr., my tract
of land,containing near fifteen hundred acres first-rate land, lying, I believe,
in Ellis county, Texas. My papers are in the hands of J. A. N. Murray and
W. H. Gill, of Clarksville, Texas, who must account for all papers of mine
in the hands of Wm. A. Park’s widow at his death."
The testator did not, at the date of his will or at his death, own
any lands in Ellis county, Texas, nor did he, as the plaintiffs insisted,
own any lands in any other county of Texas to which said devise re-
ferred. But the testator, at his death, was the owner of a head-right
certificate for one-third of a league of land—1,47 6 acres-issued in
the year 1838 by the republic of Texas to one William H. Ewing, which
was transferred by Ewing to him by deed dated April 9, 1846. C.
B. Johns, one of the defendants, having been, in July, 1867, appointed
by the probate court of Travis county, in the state of Texas, admin-
istrator, with the will annexed, of the estate of James Park, the tes-
tator, by order of the same probate court, sold, at public sale, in April,
1869, for $110.70, the head-right certificate above mentioned, shown