6 risnnaan QBEPOHTER.
to be worth about $200, to J. C. Kerbey, another of the defendants.
Kerbey afterwards located the certificate on the several tracts of land
in Ellis, Falls, and Clay counties.
The charge of the bill was that all the proceedings of Johns in the
probate court of Travis county by which he obtained the order for the
sale of the certificate, and the sale itself, were fraudulent; that Kerbey
had knowledge of and participated in the fraud; and that the other
defendants who were in possession of said lands, claiming title thereto
under Kerbey, bought with notice of the fraud. Upon the trial of the
case the plaintiffs, conceding that the testator at his death owned no
‘ land in Ellis county, or elsewhere in Texas, to which said devise re-
ferred, to prevent the devise from being inoperative, and to prove
their title to the lands in question, offered evidence tending to show
that the testator, when he executed his will, and at the time of his
death, believed that the Ewing head-right certificate had been located
in Ellis county, making him the owner of the lands covered thereby;
that it was the purpose of the testator, shown by his declarations to
and conversations with the witnesses, to devise to the plaintiffs the
Ewing certificate if it should turn out that it had not been located;
and that he was advised by the lawyer who drew his will that the de-
vise above quoted would be effectual to carry out such purpose. The
contention of the plaintiffs was that if this evidence was,admitted, it
would show them to be the owners of the Ewing head-right certihcate
under the devise in the will of James Park, and establish their title
to the lands located by Kerbey under that certificate.
It is evident that the title of the plaintiffs to the relief prayed oy
their bill depends upon the admissibility of this evidence. The de-
fendants object to the testimony. I am of opinion that the objection
is well taken, and that the evidence should be excluded.
It has been held by the supreme court of Texas that head-right cer-
tificates, like that which it is alleged the testator owned, are personal
and not real estate. Randon v. Barton, 4 Tex. 289; Johnson v. New-
man, 43 Tex. 628; Porter v. Burnett, 60 Tex. 222. The offer of the
plaintiffs is to show by extrinsic evidence the intention of the testator,
· in case the Ewing head·right certificate had not been located, to be-
queath it to them in lieu of the land devised to them by his will; thus,
by parol evidence, changing a devise of land to a bequest of personal
property. The admission of this evidence would, in my judgment, be
in violation of the established rules of the law of evidence relating to
the subject. The rules for the admission and exclusion of parol evi-
dence are the same in respect to wills as to contracts in writing gen-
erally. Doe v. Martin, 4 Barn. & Adol. 771; Holsten v. Jumpson,
4 Esp. 189; Brown v. Thorndike, 15 Pick. 400;.Lancey v. Phoenix
Ins. Oo. 56 Me. 562; Cruise, Dig. (Greenl. Ed.) tit. 38, c. 9, §§ 1-15,
inclusive; 2 Powell, Dev. (Jarman’s Ed.) 5-11. They are the same
in courts of equity as in courts of law. Bertie v. Falkland, 1 Salk.
· 231;. Towes V. Zlloor, 2 Vern. 98; Bennet V. Davis, 2 P. Wms. 316;