Rogers v. Trevathan

• Decision Date: 18 February 1887
• Citation: 3 S.W. 569
• Parties: ROGERS <I>v.</I> TREVATHAN and others.
• Court: Texas Supreme Court

3 S.W. 569

ROGERSv.

TREVATHAN and others.

Supreme Court of Texas.

February 18, 1887.

Appeal from Trinity county.

J. P. Stevenson and L. T. Robb, for appellant. J. R. Burnett, for appellees.

STAYTON, J.

The trial court found that the property in controversy was of the community estate of John C. and Sarah Gallion; that the former died testate in the year 1852; and that, by the terms of his will, the appellee was to have the land in controversy after the death of her mother. It was further found that Mrs. Gallion recognized the will, and consented to take under it, and that all the beneficiaries under it did the same. The records of the county court having been destroyed by fire, the court also found that the acts of the parties in interest under it, in connection with all the evidence in the case, required a finding that the will was properly probated soon after the death of John Gallion. We are of the opinion that these findings were justified by the evidence, or, at least, that it cannot be said that the findings are without evidence to sustain them. The entire tract of 640 acres, of which the land in controversy is a part, was community property, and of that Mrs. Gallion owned one-half. By the terms of the will, as proved, the testator gave of that tract to each of his five children 108 acres, and the remaining 100 acres, embracing that part used as homestead, he gave to his wife during her life, with remainder to Mrs. Trevathan. This clearly evidenced the intention of the testator to dispose of property which was not his own, and at the same time to confer upon his wife a right which she would not have if his estate was solvent; for, under the law then in force, the homestead belonging to a solvent estate would have been subject to partition as other real property.

This presented a case in which the wife was called upon to elect whether she would take under the will. Having only an undivided interest in the land, were the terms of the will ambiguous, the testator would be presumed to have intended to devise only his interest in the entire tract; but the specific devises of a certain number of acres to each of his five children, and of the named residue to his wife for life, with remainder to Mrs. Trevathan, leave no doubt of his intention to dispose of the entire tract. The subsequent partition between the several devisees in accordance with the will, and the subsequent conveyance by Mrs. Gallion to Mrs. Rogers of the 100 acres, leaves no...