50 Tex. 243 (Tex. 1878), March v. Huyter

Citation:50 Tex. 243
Opinion Judge:BONNER, ASSOCIATE JUSTICE
Party Name:S. W. AND L. D. MARCH v. J. J. HUYTER ET AL.
Attorney:Morris & Gould, for appellants. R. M. Wynne, for appellees. W. S. Herndon, for appellee Huyter.
Court:Supreme Court of Texas
 
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Page 243

50 Tex. 243 (Tex. 1878)

S. W. AND L. D. MARCH

v.

J. J. HUYTER ET AL.

Supreme Court of Texas.

1878

APPEAL from Rusk. Tried below before the Hon. A. J. Booty.

S. W. March and L. D. March, April 25, 1871, claiming one-fourth interest in the estate of Susan and Bird Linthecum, brought suit in the District Court of Rusk county for partition against R. C. Linthecum, Mrs. Martha Salmons, and others.

The defendant R. C. Linthecum held part of the estate by purchase of Bird after the death of his wife Susan. The deed from Bird Linthecum was attacked and asked to be cancelled.

Pending the suit, J. J. Huyter became the owner, by purchase at a trust sale, of the interest of R. C. Linthecum, and intervened in the suit.

In the litigation, the effect of a joint and mutual will made by Bird and Susan was drawn in question. The will is as follows:

" Know all men by these presents: That we, Bird and Susan Linthecum, have mutually agreed to the following arrangement and disposition of all our property, to wit:

First. The one that survives the other in this life to keep and remain in possession of all the property we have, both real and personal, during their lifetime, and the survivor is at liberty to sell the land and make title, or any other property we have, except the negroes, as we believe that neither will do anything but what is for the best, and at the death of the survivor the following disposition to take place. [Then follow specific bequests of negro slaves, by name, to each of his living children.]

And we give and bequeath to the heirs of our beloved daughter Fannie Walton, deceased, namely, William, Oakley, Jabez, and Dudley March, $1,200, to be equally divided among them, believing this to be sufficient, with the negro girl and her increase given their mother, (there being now five of them,) to make their part equal to our other children.

We do appoint and request as our executors Jabez Booker, Isaac Lawler, and Robert Haltom, and that they proceed immediately after our deaths to sell all the property not herein named, in such manner as they may think best, except the household furniture, including the land and all other description of property that there may be, and pay all our debts, and then the $1,200 to our grandchildren, as before named, the balance, whatever it may be, together with the household furniture, to be equally divided between our first-named three children, and deliver over the negroes as herein directed.

We make this our last will and testament this September 28, 1860.

(Signed) B. LINTHECUM.
SUSAN LINTHECUM.

Signed and acknowledged on the day above written. ISAAC LAWLER. ALLEN BIRDWELL." Susan Linthecum died December 16, 1860; Bird Linthecum died January 15, 1869. The will was probated as the will of Susan, on the application of R. C. Linthecum, March 28, 1870. Save as to the controversy between the intervenor Huyter and the plaintiffs, the litigation seems to have been adjusted before the trial. September, 1876, the case was submitted to the court without a jury. Without objection at the time, the judge held the case under advisement, and at the January Term, 1877, the decision of the court was announced, and judgment rendered that plaintiffs take nothing by their suit; that Huyter and Mrs. Salmons recover the land claimed by them. From the judgment the plaintiffs appealed. The additional facts are sufficiently given in the opinion of the court. Morris & Gould, for appellants.--Appellants, claiming by purchase and inheritance one-fourth interest in the estate of Bird and Susan Linthecum, sue the other heirs for partition of said estate, and ask that the personal property belonging to said estate, already appropriated by defendant R. C. Linthecum, be deducted out of his share of the land. R. C. Linthecum and Salmons and wife claim all the land by purchase from Bird Linthecum after the death of his wife Susan, and intervenor J. J. Huyter claims through deed from J. E. Norvell, who claims under a trust deed from R. C. Linthecum and wife. We think that the land described in plaintiffs' petition ought to be partitioned and plaintiffs' prayer granted, for the following reasons: I. The land being community property of Bird and Susan Linthecum, and the survivor being a joint tenant with the children of the deceased, could not convey a distinct portion of the estate by metes and bounds. ( Good v. Coombs, 28 Tex. 51, and authorities there cited.) II. Bird Linthecum...

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