“ON MOTION FOR REHEARING”
We are taken to task in “APPELLEES’ MOTION FOR REHEARING” for making application of Craycroft v. Crawford, supra, to the instant case. Appellee contends we have indulged presumptions in holding there was some probative evidence to show only such interest as to entitle appellant to contest the will.
We respectfully suggest that appellant has overlooked the fact that evidence was introduced to show decedent inherited some separate property from his parents. That placed separate property in his ownership subsequent to his death. Since no evidence was offered to show he had lost or squandered his inheritance, we feel we are bound by those cases such as Hill & Jahns v. Lofton, supra, cited in our original opinion and Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699, 703 (1959). In the last cited case where the evidence showed different persons had owned in the past certain interests in the property involved, the Supreme Court held: “The ownership having been thus established, it will be presumed that such ownership continued, unless the contrary be shown,” citing Hill & Jahns v. Lofton, supra; Sanders v. Farrier, 271 S.W. 293 (Tex.Civ.App.-Texarkana, 1925, writ dismissed); McCormick & Ray, Sec. 41, p. 64, 20 Am.Jur. Evidence, Sec. 207, p. 205.
We believe this is exactly the type case to apply the rule of Craycroft v. Crawford, supra. The contestee pleaded “ * * John Earles, deceased, did not own any separate property * * * at the time of his death.” The record shows without contradiction that he inherited separate property before his death. He may have added other land to the separate real property he inherited, or he may have sold it and purchased land in West Texas. We find no authority requiring contestant to trace the separate property once he has placed it in decedent. To the contrary, our Supreme Court in DAHLBERG held ownership once established is to continue unless the contrary be shown. We have indulged only the presumption stated by the Supreme Court.
Accordingly, the motion for rehearing is overruled.