Carroll v. Carroll

• Decision Date: 01 January 1858
• Citation: 20 Tex. 731
• Parties: THOMAS CARROLL v. SUSAN CARROLL AND OTHERS.
• Court: Texas Supreme Court

20 Tex. 731

THOMAS CARROLL

v.SUSAN CARROLL AND OTHERS.

Supreme Court of Texas.

1858.

The effect of previous decisions is, that where one party sues out a writ of error, or perfects an appeal, the other may assign errors, and incorporate them in the record brought up by the plaintiff; this rule relieves the appellee, in such a case, from the necessity of giving bond.

Where the proof was that husband and wife separated in 1829, and the wife married again eight years afterwards, and there was no evidence that the former husband was living at any time after the separation, it was held that the presumption of innocence was paramount to the presumption in favor of the continuance of human life; and that the second marriage was prima facie valid.

Where husband and wife separated in 1829, and lived at places remote from each other, and the wife married again in 1835, and the husband in 1837, and the husband and last wife lived together as man and wife, until his death in 1853; in a controversy between a child by the first wife and the second wife and her children, respecting the estate, it was held that the second marriage of the husband must be held valid, without proof of a divorce between the husband and first wife, notwithstanding the second wife knew of the first marriage of her husband, and that his first wife was still living, but married to a second husband. 15 Tex. 241.

Where the language of the will was to the effect, that as soon as all the property of the testator, real and personal, should be known and could be made available and partitioned, the same should be divided among the testator's wife and children, each to receive share and share alike of the testator's property as aforesaid, it was held that the proper construction of the will was, that the wife should receive an equal share with each of the children, in addition to her half of the community estate, although the whole estate, with an insignificant exception, perhaps, was community property.

Where the surviving wife is a legatee and executrix of her husband's will, and returns all the property as belonging to his estate, she is not precluded by the inventory from afterwards asserting her right to one-half of the community; nor can she be held to have elected to take under the will, instead of under her right to a share of the community estate, until the estate shall have been settled and she shall have taken her share under the will, to the exclusion of her legal rights on distribution. 24 Tex. 38.

The terms “my wife and children,” in a bequest, means all the children of the testator (legitimate and legitimated, at least), whether by his present or a former wife; but do not include the children of his wife by a former husband.

Children born before the marriage of their parents, who afterwards intermarry, whether such subsequent marriage is valid or null, it would seem, are legitimated by the statute.

As a general rule, a sale of property of a deceased person, under execution from the district court, against executors or administrators, is null and void; and it is therefore not sufficient, in support of such sale, to produce a final entry of judgment against such executors, execution and deed; but it must be shown further, that such judgment and execution were obtained under one of the sections of the statute, which authorize the same in special cases. 9 Tex. 546;24 Tex. 197.

Appeal from Navarro. Tried below before the Hon. Henry J. Jewett.

Suit commenced December 1st, 1854, by Thomas Carroll, against Susan Carroll, Elias Carroll, Jun., and Joseph Carroll, executors of Nathaniel H. Carroll, deceased, to set aside the will of said Nathaniel, on the ground that the testator was not of sound mind when he executed it; and in the event said will should be set aside, to establish plaintiff's right as sole heir of the estate of said Nathaniel; and in the event said will should be sustained, to obtain a construction thereof; and against Berry L. Ham, to recover a slave Dick, and lots Nos. 1, 2 and 9 in block No. 12 in the town of Corsicana, the property of said estate, of which it was alleged said Ham had become unlawfully possessed; and it was also alleged that said executors had caused certain property of said estate, to wit: slaves Dick and Moses, a mule, and a wagon and a yoke of steers, to be inventoried as the separate property of said Susan Carroll, whereas this petitioner alleges that said property was the separate property of said Nathaniel, deceased. Prayer, etc.

Defendants admitted the will, as alleged, and their possession of the property, as alleged, as shown by the inventory filed by them as executors. The inventory embraced all the estate. All the children of the deceased testator were made defendants. The will was as follows:

THE STATE OF TEXAS, County of Navarro.

I, Nathaniel H. Carroll, of the county and state aforesaid, being of sound mind and memory, but considering the uncertainty of my earthly existence, do, by this my last will and testament, make, ordain, publish and declare: First, that is to say after all my just debts are paid and discharged, I give, bequeath, devise and dispose of all my real and personal estate as follows: And first, it is my express wish and desire that the county court for the settlement of the estates of deceased persons of the county of Navarro, or of any other county in the state of Texas where this my will shall be probated, shall not have any control or management of my estate, further than that of returning an inventory of my estate, and that no security whatever shall be exacted or required by the county court of my executors, hereinafter named, for the safe management and conduct of my estate. Second. It is my wish that all the real and personal estate which may be belonging to me at the time of my death, be the same lands, cattle, horses, book debts, notes or claims of any kind, be collected together by my executors, hereinafter named, as soon as they can, and after all my property, as aforesaid, is known, and the same can be made available and partitioned, I order that the same shall be divided among my wife and children, each to receive share and share alike of all my property as aforesaid; and I hereby nominate and appoint Susan Carroll, my wife, Elias Carroll, Junior, Joseph Carroll and Jesse Ammond executors of this my last will and testament, to carry into effect my instructions as expressed aforesaid in this my last will and testament.

Defendant Ham answered, denying that he had possession of any of the property of said estate, except lots Nos. 1, 2 and 9 in block No. 12 in the town of Corsicana, which said defendant claimed by deed of conveyance executed and delivered to him on the 7th of August, 1854, by James B. Berry, as sheriff of Navarro county aforesaid; which deed was filed as part of said answer. This defendant admitted that he had possession of the slave Dick, under authority of Susan Carroll, from the 25th day of January, 1854, to the 15th of March, 1855, when he surrendered said slave to said Susan. Said deed recited a judgment in favor of one Hampton McKinney, against said executors, with an order for the sale of that particular property, etc.

Elizabeth Haley filed a disclaimer of all interest in said estate. She was witness for plaintiff. At fall term, 1856, trial, special verdict and judgment as follows:

The cause coming on to be heard upon the petition and answers of defendants, and after hearing the evidence in the case, the court directed the several issues, as herein stated, to be submitted to the jury.

1st. Is Thomas Carroll, the plaintiff in this case, the legitimate son of Nathaniel H. Carroll, or not?

2d. Was Nathaniel H. Carroll ever married to the defendant Susan Carroll? and if so, when and where? And if married, can you or can you not find from the evidence whether the said Susan had any knowledge of any previous marriage of Nathaniel H. Carroll with one Elizabeth Lindsey? And further, did said Susan Carroll have any knowledge that said Elizabeth Lindsey was alive from 1829 to 1836?

3d. Did the said Nathaniel H. Carroll, as the head of a family, obtain a certificate or grant from the republic of Texas for land? and if so, when was it, and who composed the family?

4th. Did said Elizabeth, as the head of a family, ever receive a certificate or grant from the republic of Texas for land? and if so, when was it, and in whose name, and who composed the family?

5th. Did said Elizabeth marry Mark Haley? and if so, when and where?

6th. Did Nat. H. Carroll and said Susan have any children by each other before their marriage? and if so, how many, if any, and their name or names?

7th. Was the defendant Elias Carroll born during or before the marriage of N. H. Carroll and said Susan? If he was born before the marriage, was he afterwards and during said marriage recognized by said Nathaniel H. Carroll as his child? or how did he treat him, and on what footing was he in the family? And is Elias by birth the son of Nath. H. Carroll, or whose son is he?

8th. Did Nathaniel H. Carroll have any children by said Susan Carroll after their marriage? If so, their names? And say how many are living now, how many are dead, and can you find from the evidence that those who have died left any children?

9th. How was the property of which Nath. H. Carroll died possessed obtained? Can you find from the evidence whether it was acquired by him after the reputed marriage with Susan Carroll? and if so, state and describe the property and its value as nearly as you can determine from the evidence.

10th. The jury will find, from the evidence, whether B. L. Ham purchased the tavern stand under an order of the district court; and if so, when; and state what it is reasonably worth, and what its annual rent is reasonably worth.

11th. The jury will find, if they can, from the evidence, on what terms and for what purpose B. L. Ham received the negro from the estate, and if he has...