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Rule 187. Deposition to Perpetuate Testimony (1957)

TEXT

When any person may anticipate the institution of a suit in which he may be interested, and may desire to perpetuate the testimony of a witness to be used in such suit, he, his agent or attorney, may file a written statement in the proper court of the county where such suit could be instituted, representing the fact and the names and residences, if known, of the persons supposed to be interested ad­versely to said person; a copy of which statement and writ shall be served on the persons interested adversely. Where such person, his agent or attorney, shall at the time of filing such statement make affidavit that the names and residences of the heirs, successors or legal representatives of any deceased person are unknown to the affiant, or reside beyond the jurisdiction of the State, the clerk of the court or justice shall issue a like writ, which shall be served on such unknown or non­resident persons by publication in some newspaper in the mode and manner pro­vided by law for the service of original citation upon nonresidents or unknown parties; after which the depositions of such witnesses may be taken and returned by the parties making the said statement in the form and under the rules prescribed for taking testimony by deposition; and such testimony may be used in any suit which may be thereafter instituted by or between any of the parties to the statement, or those claiming under them, in like manner as if such depositions had been taken after the institution of such suit.

An application or petition for the probate of a will, or an anticipated application or petition for the probate of a will, shall be considered as a suit within the meaning and purport of this Rule; and, whenever any person in this State shall desire to perpetuate testimony for use in an anticipated application for the probate of a will, the writ, accompanied by a copy of the aforesaid statement may be served by posting as prescribed by Section 33 (f) (2) of the Texas Probate Code, such writ to be directed to all parties interested in the estate of the testator and to comply with the requirements of Section

33 (c) of said code in so far as they may be applicable. When such suit has been instituted, all such depositions so taken and returned shall be subject to the like exceptions as other depositions.

Amended by order of March 19, 1957, eff. Sept. 1, 1957: Last two sentences reworded to require notice to conform to applicable provisions of Probate Code instead of to old statutes.

ADVISORY OPINIONS

(No. 134) Question: Under Rule 187 providing for the taking of depositions to perpetuate testimony, is the taking of such depositions limited to instances where the persons adversely interested are unknown heirs or non-residents? This question is propounded because the portion of Rule 187 which authorizes the actual taking of the depositions is embodied in the second sentence of the Rule immediately following the first semicolon therein, and a question has been raised as to whether it applies to the first sentence of the rule dealing with cases where the adversely interested parties are residents and their addresses are known.

Answer: It is the opinion of the Sub­committee that this Rule authorizes the taking of depositions to perpetuate testimony in the instances referred to in both the first and second sentences of the Rule. We feel that the obvious purpose and intention of the Rule is to allow the tak­ing of depositions in all such cases. Any other construction would make the first sentence of the Rule entirely meaningless and inoperative.

The notation at the foot of the Rule indicates that this Rule is "Article 3742, unchanged." It was obviously the purpose of the Supreme Court to carry forward Article 3742 as a Rule, and it was well settled that said Article authorized the taking of depositions to perpetuate testimony in either of the instances under con­sideration. When the Rule was drafted from the Statute, the first sentence of the Statute was divided into two sentences, apparently because of the extreme length of the sentence. However, the notation was made at the foot of the Rule that it was taken from Article 3742 unchanged, and we feel that the same construction should be given to the Rule that had been given to the Statute.

7 Tex. B.J. 327 (1944) reprinted in 8 Tex. B.J. 51 (1945).