Chace v. Gregg

• Decision Date: 28 October 1895
• Citation: 32 S.W. 520
• Parties: CHACE v. GREGG et al.
• Court: Texas Supreme Court

32 S.W. 520

CHACE v. GREGG et al.

Supreme Court of Texas.

October 28, 1895.

Error to court of civil appeals of First supreme judicial district.

Suit by Jacob Chace against William B. Gregg and others to quiet title. From a judgment of the court of civil appeals (31 S. W. 76) affirming a judgment for defendants, plaintiff brings error. Affirmed.

Ira P. Jones and E. P. Hamblen, for plaintiff in error. S. Taliaferro, for defendants in error.

BROWN, J.

Darius Gregg and Mary A. Gregg were husband and wife. William B. Gregg was the son of Darius Gregg by a former wife. Darius Gregg was possessed of real estate, his separate property, and of real estate and personal property, the community property of himself and his wife, Mary A. Gregg. Darius Gregg made a will, which was, after his death, probated. By his will, Darius Gregg made certain specific devises of real estate to some nephews, not necessary to mention, and in the will were the following provisions affecting the matters in litigation: "Item 2. I give and bequeath to my son, William Bowen Gregg, eleven lots in block thirteen in the town of Waco, in McLennan county, Texas; also, fifteen acres of land owned by me adjoining said town of Waco; also, all that portion of ground owned by me that lies between the Liberty road in Houston, Texas, and Buffalo Bayou, together with the improvements thereon that may remain unsold at my death; also, the donation of land given me by the republic of Texas, and located on Menard's creek in Polk county, Texas; and, after my debts are paid, I give unto my said son two-thirds of all the money I may die possessed of." "Item 5. To my wife, Mary A. Gregg, I give all that portion of land I own that lies between the Liberty road and the New Orleans Railroad, situated in Houston, Harris county, Texas, including my homestead; also, my horse and buggy; and one-third of the money I may die possessed of, after payment of my just debts. Item 6. After the payment of the above special bequests, I desire the remainder of my property, of every description, both real, personal, and mixed, to be equally divided between my son, William Bowen Gregg, and my wife, Mary A. Gregg, with the expressed under standing and condition annexed that if my wife, Mary A. Gregg, should die without issue from her body,—that is to say, without leaving a child or children born unto her,— and shall at the time of her death be in possession of property of any description that she may have received from me by virtue of this, my last will and testament, then and in that event I desire the said property to go to my son, William Bowen Gregg, if then living, and, if dead, to his nearest heirs." All of the property devised specifically to William Bowen Gregg and Mary A. Gregg was the community property of Darius and Mary Gregg, except the land in Polk county. There were several tracts of land in Denton county, some of which was community property, and some the separate property of Darius Gregg. Of the separate property, the land in Denton county, Mary A. Gregg sold an undivided half interest to William B. Gregg, receiving $5,000 in payment therefor. The property in controversy was the community property of Darius Gregg and his wife, and embraced in the item 6, excepting the homestead; that is, the tract of land in the city of Houston, lying between the Liberty road and the New Orleans Railroad, and that tract devised to William B. Gregg, described as lying between the Liberty road, in Houston, and Buffalo Bayou. Darius Gregg died in 1870, and his wife, Mary, married the plaintiff in error in 1882. She afterwards died, leaving a will, whereby she devised and bequeathed all of her estate to her husband, plaintiff in error. William B. Gregg died before the death of his stepmother, Mary A. Chace, leaving a widow and children, to wit, Susan S., Carrie May, and W. B. Gregg, Jr., all minors. The widow of W. B. Gregg married C. Lipscomb. Before his death, W. B. Gregg made a will, appointing C. Lipscomb executor of his estate, which will was duly probated. Before the marriage of Mrs. Mary A. Gregg to the plaintiff in error, she and William B. Gregg, Sr., made a parol partition of the property described as lying between the Liberty road, in Houston, and Buffalo Bayou, and that other portion, described in the fifth item, as lying between the Liberty road and the New Orleans Railroad, situated in Houston. By this parol partition, each was to have the portion devised to him or her in the second and fifth items. After the marriage of Mary A. Gregg and Jacob Chace, partition was made, by warranty deeds from each to the other, between Mary A. Chace, formerly Gregg, and William B. Gregg, Sr., of certain property described in the deeds, and situated in the city of Houston, as well as some other property. After the death of Mary A. Chace and William B. Gregg, Jacob Chace instituted suit in the district court of Harris county against C. Lipscomb, executor of W. B. Gregg, Emma Lipscomb, his widow, and his minor children, named above, to quiet the title to a portion of the property in controversy. Lipscomb and his wife answered, admitting the justice of the plaintiff's claim. S. Taliaferro was appointed by the court guardian ad litem for the minors, and filed an answer, denying the plaintiff's right to recover, and pleaded in reconvention for removal of cloud in their favor upon the title to other lands claimed by the plaintiff, Chace, in the same right. There was a trial before the court, in which judgment was rendered for the defendants. From this judgment, Chace appealed to the court of civil appeals of the First supreme judicial district, which affirmed the judgment of the district court.

Jacob Chace sued out this writ of error upon the following grounds, assigned as error in the judgment of the court of civil appeals: (1) The court erred in its conclusion of fact wherein it held that Mary A. Gregg often spoke of the property devised to her as belonging to W. B. Gregg after her death, and in the construction that the court placed thereon. (2) In the conclusion of the court that there is nothing in the will making any distinction between community and separate property, but, on the...