Rutherford v. Deaver, (No. 257-3473.)

• Court: Supreme Court of Texas
• Writing for the Court: Powell
• Citation: 235 S.W. 853
• Parties: RUTHERFORD et al. v. DEAVER et al.
• Docket Number: (No. 257-3473.)
• Decision Date: 14 December 1921

235 S.W. 853 RUTHERFORD et al.
v.
DEAVER et al. (No. 257-3473.) Commission of Appeals of Texas, Section B. December 14, 1921.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by Mrs. M. F. Rutherford and others against Mrs. Pete Deaver and others. Judgment for the defendants, and the plaintiffs appealed to the Court of Civil Appeals, which affirmed the judgment (218 S. W. 31), and the plaintiffs bring error. Judgments of district court and Court of Civil Appeals reversed, and cause remanded to the former for another trial not inconsistent with the opinion.

T. T. Thompson, of Clarksville, and Wilkinson & Davidson, of Mt. Vernon, for plaintiffs in error.

Mahaffey, Keeney & Dalby, of Texarkana, and E. S. Chambers, of Clarksville, for defendants in error.

POWELL, J.

The nature and result of this case have been admirably stated by the Court of Civil Appeals as follows:

"By his first wife Pete Fulbright, Sr., had two children, a daughter named Birdie, who married one Rutherford, and a son named Henry E., who died, leaving as his sole heirs a daughter and two sons, who with Mrs. Rutherford were plaintiffs in the court below and are appellants here. By his second wife Pete Fulbright, Sr., had one child, a daughter, also named Pete, who married one Deaver. She was the defendant in the court below, and is the appellee here. Pete Fulbright, Sr., owned as a part of his separate estate 375 acres of the John Laud survey in Red River county. By a deed dated February 2, 1880, for love and affection he had for his daughter Mrs. Rutherford, and his son, Henry E., he conveyed to them 175 of said 375 acres of land. Pete Fulbright, Sr., died intestate in May, 1881, owning the remainder of said 375 acres and an interest in the community estate between him and his second wife, consisting, it seems, of personal property and two tracts of land. November 29, 1882, the 200 acres of the Laud survey owned by said Pete Fulbright, Sr., when he died, was set apart to his widow and their daughter Pete, then a minor, for their use as a homestead. At the same time certain personal property was set apart to them. The proceeds of certain other personal property sold by Pete Fulbright, Sr.'s administrator was used to pay debts of the estate, and allowances made by

Page 854

the probate court to said widow and her minor daughter. A partition of the property remaining (except the 200 acres in controversy here) in which Pete Fulbright, Sr., owned an interest was had between his heirs, including Mrs. Rutherford and H. E. Fulbright, in 1889. In that partition no account was taken of the fact that Pete Fulbright, Sr., during his lifetime had given 175 acres of the Laud survey to Mrs. Rutherford and H. E. Fulbright. The widow of Pete Fulbright, Sr.'s second marriage took possession of the 200 acres of the Laud survey at the time it was set apart to her and her minor daughter in 1882, and thereafter until her death in July, 1916, used it as her homestead. Mrs. Rutherford and the children of H. E. Fulbright claimed that the 200 acres was owned as follows: One-third by Mrs. Rutherford, one-third by the children of H. E. Fulbright, deceased, and one-third by Mrs. Pete Deaver; and the object of their suit against Mrs. Deaver was to have it partitioned accordingly. Defending the suit, Mrs. Deaver claimed that the 175 acres, conveyed to Mrs. Rutherford and H. E. Fulbright in 1881 was an advancement to them by Pete Fulbright, Sr., out of his estate: that said Mrs. Rutherford and H. E. Fulbright at once took possession of, and ever afterwards used, the 175 acres free of any charge or claim thereto in favor of any other person; that the widow of the second marriage owned a life estate of one-third in the 200 acres remaining of the Laud survey, and that the same was, besides, charged with the right of said widow to use it as a homestead while she lived; that said widow did so use same; that the value of the 175 acres advanced to said Mrs. Rutherford and H. E. Fulbright, as compared with the value of the 200 acres remaining of the 375 acres, charged as it was with the life estate and homestead right in the widow of the second marriage, exceeded the value of the interests owned by Mrs. Rutherford and H. E. Fulbright in the estate of their father; that said Mrs. Rutherford and H. E. Fulbright therefore were not entitled to any part of said 200 acres; and that she, Mrs. Deaver, was entitled as against them, to all of said 200 acres. The appeal is from a judgment in Mrs. Deaver's favor in accordance with her contention."

The case was tried before a jury upon special issues. Based upon the jury's answers thereto, judgment was entered as aforesaid. Upon appeal, the Court of Civil Appeals affirmed the judgment of the trial court. See 218 S. W. 31.

The controlling question on this appeal involves the proper construction of the granting clause of a deed executed by Pete Fulbright on February 2, 1880, conveying his two children therein mentioned 175 acres of land out of his separate estate. Said granting clause reads as follows:

"For and in consideration of the love and respect, affection which I have and bear for my daughter, Birdie Rutherford and my son, Henry E. Fulbright, do by these presents give, grant and convey to the said Birdie Rutherford and Henry E. Fulbright, their heirs and assigns, all that tract or parcel of land," etc.

It was conceded by all the parties that the granting clause aforesaid, on its face, as a matter of law, constituted a gift. The point in controversy is whether or not such a clause in such a deed, purporting on its face to be a gift, will be presumed, as a matter of law, to have constituted an advancement. The trial court held that such a conveyance, as a matter of law, in the absence of any outside proof to the contrary, constituted an advancement; that the law would so presume. So holding, he refused to submit to the jury, although requested so to do by plaintiffs in...