On Motion for Rehearing. Both parties have filed motions for rehearing. Appellant's motion raises no new question, and, after carefully considering the various grounds set up in connection with our former opinion, we think we have correctly decided the issues.
Appellant's motion insists that we should not have affirmed that part of the judgment admitting the Geary will to probate. The Geary will is as follows: "The state of Texas, county of Moore. July 5, 1911. Know all men by these presents that E. Vanlaw has wild John Geary Seven Thousand Dollars at My Death the Rest of my property to my bodley airs, written by F. Y. Adams. Witness by F. Y. Adams, Bob Hammett. [Signed] E. Vanlaw."
The appellee's replication first alleged that the Geary will had been offered for probate in a separate proceeding and probate thereof refused by the district court of Moore county. In a separate paragraph it is further alleged that said will was not intended to revoke the former will, consisting of the promissory note, envelope, and letter set out in the original opinion, but declares that the Geary will was to provide a legacy for John Geary, and for a disposition of the balance of his estate after the payment of the legacy, and prays "that, if said will was so executed, and it is the judgment of the court that the former judgment herein pleaded is not conclusive, then your applicant prays that the said will be admitted to probate as the will of E. Vanlaw, deceased, in connection with the probate of the instrument offered by your applicant, and that the court inquire into the manner of the execution of said instrument and the circumstances of its execution, and, if it be found that the same was intended by the said E. Vanlaw as his will, then the same be admitted to probate in connection with the probate of the instruments offered by your applicant, to the end that said two instruments may be construed together, and the intention of the said testator as expressed in said two instruments be ascertained." The proceedings in the county court are not made part of the record, and every presumption must be indulged in favor of the validity of the judgment of the district court. The brief of appellant in this case nowhere raises the question that the judgment of the district court in probating the Geary will is not supported by proper pleadings and evidence, and the only assignment bearing directly upon the question is appellant's forty-first assignment of error, as follows: "Said judgment is further erroneous upon its face for that it admits to probate the John Geary will, which, by its terms, revokes all prior testaments, documents, and at the same time admits to probate the envelope, promissory note, and other paper tendered as a whole and as the will of B. Vanlaw, and such note bears a prior date, so that judgment contradicts itself." It is clear that this assignment does not raise the question of the right of the court to probate the Geary will because of a dearth of pleading or evidence. We think the pleadings are sufficient, and a want of evidence or an insufficiency of evidence to sustain the judgment is not such fundamental error as to require a consideration without the matter having been brought to the attention of this court by proper assignment.
G., H. S. A. Ry. v. Clark, 21 Tex. Civ. App. 167, 51 S.W. 276; Peevehouse v. Smith, 152 S.W. 1196: Appellant has raised the question too late to entitle it to consideration. Even if the note, envelope, and letter could be held to be a will, we believe that the Geary will had the effect of revoking it, provided the Geary will was executed afterwards. Dougherty v. Holscheider, 40 Tex. Civ. App. 31, 88 S.W. 1113.
Appellee's motion for rehearing is also overruled.