Paschal v. Acklin

• Citation: 27 Tex. 173
• Parties: F. L. PASCHAL AND WIFE v. A. ACKLIN AND OTHERS.
• Decision Date: 01 January 1863
• Court: Supreme Court of Texas

27 Tex. 173

F. L. PASCHAL AND WIFE

v.A. ACKLIN AND OTHERS.

Supreme Court of Texas.

1863.

The plaintiff claimed the land in controversy by virtue, in part, of her right of inheritance as the mother and heir of the deceased children and heirs of her former husband. Among the issues raised by the pleadings was the question of fact, whether or not the plaintiff was the mother, and as such the heir, of the children and heirs of her former husband; but the jury, in their special verdict upon the issues submitted to them, omitted to find upon the particular issue above referred to. Held, that the verdict is defective, and in consequence the judgment below, in favor of the plaintiff, is reversed and the cause remanded.

In actions involving the title to land, the plaintiff need not deraign his title beyond the common source under which both he and the defendant claim.

NOTE.--Stephens v. Hix, 38 Tex., 656;Keys v. Mason, 44 Tex., 140; overruling Linthicum v. March, 37 Tex., 349. It is not necessary that plaintiff allege that both parties claim under a common source, to entitle him to prove it. (Keys v. Mason, 44 Tex., 140.)

By deed or act of sale made before a notary public in the state of Louisiana in the year 1837, the vendor conveyed certain lands in Texas to A. as “the legally constituted attorney of” B., and recited that said attorney was “here present, accepting for the said” B. Held, that by such deed or act of sale the title passed direct to B., and not to A. as the agent or trustee of B.

The records, judgments or proceedings of the courts of one state cannot pass the title to land situated in another state; though courts of equity, having jurisdiction of the person, may compel a party to convey land beyond their jurisdiction; in which case it is the act of the party, and not the decree of the court, which transmits the title.

To make a will available as a muniment of title in the courts of this state, it must have been probated in this state.

Although a will has been probated in another state, upon proof which would authorize its admission to probate in this state, yet, a certified copy of the will and of its probate, taken from the records of the court of the other state, is not admissible in our courts as a muniment of title.

A testator, resident in the state of Tennessee, made his will in Louisiana in the year 1841, and after bequests to his wife, children, etc., devised to trustees for charitable uses all his “property, real and personal, of whatever kind and nature, that is situated in the states of Tennessee and Mississippi, or in any other common law state where trust estates may be created.” Held, that, as the common law was in force in Texas at the date of the will, and as trust estates were permissible in Texas at that time, the testator's property in Texas passed to the trustees under the devise.

The restriction upon the power of parents to deprive their children by will of more than one-fourth of their estates, imposed by the statutes of wills of 1840, since repealed, was applicable to non-residents of Texas, as well as to citizens.

In applying the provision of the statute above referred to, regard must be had to the whole of the estate of the testator, wherever situate, and not merely to such of it as may be in Texas; and if the value of the portion devised away from the children did not exceed the value of one-fourth of the entire estate, wherever situate, the devise was good.

It is a fundamental principle that a party will not be permitted to take under a will, and at the same time to take adversely to it.

A will is not void because the testator attempted to bequeath more than the disposable portion of his estate; it is only voidable to the extent of the excess.

A will when admitted to probate is presumptively valid and good, and so remains until it is invalidated in a direct proceeding, between the proper parties, in the proper tribunal. Its validity, when probated, cannot be called in question in a collateral proceeding.

NOTE.--Lewis v. Ames, 44 Tex., 319.

Bequests to charitable uses are not within the constitutional prohibition of perpetuities and entailments.

See the opinion for a discussion of the characteristics of a devise to charitable uses as distinguished from gifts or bequests to individuals, and for a review of leading cases upon the subject.

ERROR and APPEAL from Bexar. Tried below before the Hon. Thomas J. Devine.

This suit was instituted to the spring term, 1857, of the Bexar district court, by Adalicia Acklin, joined by her husband, Joseph A. S. Acklin, against F. L. Paschal and wife, Ira L. Hewitt and others deriving title under Paschal and wife, and also against the trustees of the Methodist church of the city of San Antonio, who also claimed under Paschal, for the recovery of a certain lot or parcel of ground in San Antonio.

In their original petition the plaintiffs claimed the whole of the property in controversy, but by an amendment reduced the claim to one undivided half of it.

The defendants pleaded the general issue, and the limitations of three and five years, and suggested valuable improvements made in good faith. In an amended answer, filed on the 23d of March, 1858, they further alleged that Isaac Franklin, deceased, under whom the plaintiffs claimed by inheritance, departed this life in the year 1845, leaving his last will and testament, by the provisions of which all his property in all common law states where trusts could be created was bequeathed to trustees, for the purpose of erecting and endowing a seminary of learning to be established in Sumner county, Tennessee, and to be called the “Isaac Franklin Institute.” That the state of Texas was, at the time of the death of said Franklin, and at the date of said last will and testament, a common law state; and that all the land owned by said Franklin within said state of Texas, by virtue of said will, passed to and became vested in said trustees, for the use and benefit of said institute so to be established. That said last will and testament was duly probated and ordered to be executed by the competent tribunals of the states of Louisiana and Tennessee; and that the trustees named in said will, and those substituted in their place, proceeded to execute the trust. That the state of Tennessee, in December, 1847, incorporated the trustees of the Isaac Franklin Institute, which corporation still continues. That the plaintiff, Adalicia Acklin, at various times and occasions, treated and contracted with said trustees, and acknowledged the rights of the said institute under said will, whereby the plaintiffs are concluded.

At the same term, Joseph H. Acklin and William D. Acklin, minors, intervened by their next friend, Joseph D. Wade, and claimed an interest in the property in suit, “by virtue of their heirship from Emma Franklin, deceased, half sister of these intervenors, and the last surviving child of the marriage of Isaac Franklin and Adalicia Franklin, now Adalicia Acklin.” Wherefore the intervenors prayed to be adjudged the owners of such portion of the property in controversy as they were entitled to under the laws of descent and distribution of this state.

The cause came to trial at the fall term, 1858. The plaintiffs offered in evidence a deed or act of sale executed by Pleasant Branch Cocke, on the 5th day of July, 1837, before a notary public in the city of New Orleans. By this instrument Cocke conveyed the one undivided half of certain lands in Texas, including the property in controversy, “unto James H. Shepperd, of the city of New Orleans (the legally constituted attorney of Isaac Franklin of this city, by an act passed before me, notary, on the 15th of May in the present year), here present, and accepting for the said Isaac Franklin, his heirs and assigns,” etc.

The plaintiffs further proved that the plaintiff Adalicia was the widow of Isaac Franklin, formerly of Sumner county, Tennessee, who died at one of his plantations in Louisiana, on the 27th of April, 1846. That Isaac Franklin and his said wife had, as issue of their marriage, three daughters, two of whom died in June, 1846, and the third, Emma, died in the year 1855. That in May, 1849, the widow of said Franklin, being the present plaintiff Adalicia, married Joseph A. S. Acklin, now associated with her in the prosecution of this suit.

It was admitted that the intervenors, Joseph H. and William D. Acklin, were the half brothers of Emma Franklin, deceased, and as such were joint heirs with their mother, Adalicia Acklin, of any rights that Emma Franklin may have died possessed of in the state of Texas.

It was admitted that the co-defendants of F. L. Paschal claimed under warrantee deeds from him. The defendants put in evidence a quit-claim deed from R. R. Barrow to F. L. Paschal, made in the year 1851, for the property in controversy. They also read in evidence a transcript from the records of the probate court of the parish of West Feliciana, state of Louisiana, containing the petition for the probate of the last will and testament of Isaac Franklin, and that instrument itself, together with its probate, etc. By this will, which was executed on the 24th of May, 1841, the testator, after making ample provision for his widow and children, with bequests to other relatives, made the following general disposition of his estate: “I give and bequeath all my property, real and personal, of whatever kind or nature, that is situated in the states of Tennessee and Mississippi, or any other common law states where trust estates can be created, together with my bank stocks, and effects and credits, and in case I should have no other children by my said marriage except my said daughter Victoria, then two-thirds of all my property, movable and immovable, that is situated in the state of Louisiana; but if there should be two children born of said marriage, then only an undivided one-half of all my said property, movable and immovable,...