§ 121.011.Proof of Acknowledgment by Handwriting

The last resort, available only where the two ordinary routes have failed.

Execution may be established by proof of handwriting only if one of five things is true: the grantor and all witnesses are dead; they are all non-residents of Texas; their residences are unknown and cannot be ascertained; the witnesses have become legally incompetent to testify; or the grantor refuses to acknowledge and all witnesses are dead, non-resident, incompetent, or of unknown residence.

Each ground requires that everyone be unavailable. A single reachable witness closes this route, because proof by witness is available instead.

The fifth ground is the practical one — a grantor who signed and now will not confirm it, with no witness left to prove the execution.

What must be proved depends on how the instrument was signed. Where the grantor signed his name, execution is proved by the handwriting of that person and of at least one witness. Where the grantor signed by making his mark, it is proved by the handwriting of at least two of the witnesses.

The mark case has to work differently because a mark has no handwriting to identify, so the witnesses carry the whole proof.

The qualifications for a handwriting witness are specific. The evidence must give the residence of the testifying witness, and that witness must have known the person whose handwriting is being proved, be well acquainted with the handwriting, and recognize it as genuine.

The evidence must be in writing, by deposition or affidavit of two or more disinterested persons, and must satisfactorily prove each requirement to the officer, who certifies the testimony and attaches the certificate with the depositions to the instrument.