In view of the very careful provisions of our statutes as to the execution (R. S., arts. 4857-4876), manner (R. S., arts. 1831-1835 and 1847-1856 et seg.) and time (R. S., art. j 828) in which wills shall be probated, deposited and recorded, we are of the opinion that a will cannot be used in evidence in this state as constituting a title, or a link in the chain of title, to property, without it has been probated in the manner and form required by our law. Paschal v. Acklin, 27 Tex., 173; Tynan v. Paschal, 27 Tex., 286; Brundige v. Rutherford, 57 Tex., 26.
This seems now to be the general rule in the United States.
In Wharton on the Law of Evidence (vol. 1), it is said (section 66): “ Without this proof (probate), the will itself, as a title to property, cannot be received in evidence.” For this he cites many authorities, some of which, however, do hot seem quite to bear him out in his statement.
*462In Greenleaf (Yol. 1, sec. 518) the rule is laid down as follows: “ In all cases where the court of probate has. jurisdiction, its decree is the proper evidence of the probate of the will.”
Abbott, in his work on Trial Evidence (p. 109, sec.' 59), says t “A will is put in evidence by showing it to have been duly proved in the probate or other competent court within the state. . . . This is now the primary and exclusive mode of proving a domestic will.”
The court, under the circumstances, therefore, did not err in excluding the will of Miller as a link in the chain of title of appellant, in the absence of evidence of its probate under our laws.
In order to use it as evidence of title to property, it must be properly probated. In this case, as its genuineness is admitted, and'the proof shows that it has not been under the control of the appellant, nor in its proper place of deposit (R. S,, art. 4875), but has been in the possession and under the control of appellees ever since the death of the testator, it may still be probated if the appellant takes the proper steps and makes the proper proof to the satisfaction of the court (R. S., art. 1828). Mo letters testamentary can, however, issue:
Where a will appears to be ancient, and comes from the proper custody, and possession has been had consistent with its terms for a long period of time, and its probate was impossible or impracticable, the court might in such a case, to uphold and favor such a long and undisturbed possession, and to protect a right, perhaps be justified in recognizing its validity and genuineness. 1 Greenleaf on Evidence, sec. 21, and many authorities cited in the note; sec. 141; sec. 142 (and note); secs. 144, 570; Starkie on Evidence, marg. pp. 93, 94, 95, 291, 292, 293, 523, 524.
This point is not, however, presented in this case, and we wish it to be understood that the decision in this case, as it should be in all cases, is limited to the exact points necessary to be determined.
The deed from Calistra Dias, and her husband Santos Dias, should have been admitted in evidence. The signature of Santos Dias to the deed, and his acknowledgment, was sufficient to show he had joined with his wife in the conveyance.
The court erred, too, in excluding the proof of payment of taxes offered by appellant. The comptroller’s receipt is neither the best nor the only evidence of that fact. In Watson v. Hopkins, 27 Tex., 637, this court held that the law prescribes no more stringent rule concerning the proof of the fact of the payment of taxes than for the establishment of any other fact in the case. The payment may *463he shown by direct or circumstantial evidence of a legitimate character. Deen v. Wills, 21 Tex., 643; Acklin v. Paschal, 48 Tex., 147.
The court erred, too, in excluding entirely, and for all purposes, the will above referred to, even though it was not probated, inasmuch as its existence and genuineness was admitted in open court.
Though not proof of title, in the absence of evidence of its probate, it could, when admitted to be genuine, be used to show the good faith of appellant in making the purchase, and in putting improvements on the property.
There was error, also, in excluding the evidence offered by appellant to prove the amount of money he had paid for the property; and there was also error in not granting a new trial, as the verdict for ($110) one hundred and ten dollars damages against the appellant was unsupported by and against the evidence.
There are also other errors disclosed in the record in the exclusion of appellant’s evidence on the subject of rent; and the final judgment, too, the suit being practically one for partition, was not in the proper form.
It is not, however, deemed necessary to notice any of the other errors complained of, as on another trial these matters may not. come up again.
The judgment is reversed and the cause remanded.
Beversed and remanded,
[Opinion delivered May 22, 1883.]