Sawyer v. Boyle

• Decision Date: 01 January 1858
• Parties: G. W. SAWYER AND OTHERS v. ALEXANDER BOYLE.
• Court: Texas Supreme Court

21 Tex. 28

G. W. SAWYER AND OTHERS

v.ALEXANDER BOYLE.

Supreme Court of Texas.

1858.

A decree of distribution of an estate necessarily involves the determination of the fact that all the distributees are living, but only incidentally so, as the basis of the decree; the decree is therefore not conclusive of such fact, but it may be proved by any one whose interest warrants it, that one or more of the distributees were dead at the date of the decree; and it makes no difference that the decree recites that such person was present in court consenting thereto.

The fact that the record of the probate court in describing the distributees of an estate, designates different parties as entitled to the same purpart or share, to wit: “the heirs and legal representatives of Leona Trammell,” and ““Leona Trammell,” renders the record subject to explanation by the proof of facts to show who must have been intended; and upon proof in such case, that Leona Trammell was dead at the date of the proceedings, it must be held that her heirs were intended and were the parties whose presence and representation by attorney were recited in the decree. 27 Tex. 448.

Error from Fayette. Tried below before the Hon. James H. Bell.

The plaintiffs in error claimed and gave bond to try the right to a boy slave, Frank, twelve years of age, levied on as the property of Nathaniel Trammell, at the suit of the defendant in error. The slave was taken in December, 1853, and the claim was made on the 14th of January, 1854. The claimants gave in evidence a transcript from the probate court of Chicot county, Arkansas, in the matter of the succession of Britton Ward: entry showing petition of Stokely Ward, administrator of Britton Ward, in July, 1842, representing that there was more property than was required to pay the debts of said estate, and praying a distribution thereof as follows: To Stokely Ward one share; to Rosa Bankston, formerly Ward, one share; to Sally Terry, formerly Sally Ward, one share; to the heirs and legal representatives of Squire Ward one share; to the heirs and legal representatives of Huldah Burch, formerly Ward, one share; to the heirs and legal representatives of Leona Trammell, formerly Ward, one share; to Tensey Vessells, formerly Ward, one share; to the heirs and legal representatives of Brinkly Ward one share; petition refused; re-hearing; re-argument and taken under advisement. Same term entry entitled Stokely Ward, administrator of the estate of Britton Ward, deceased, v. Rosa Bankston, Sally Terry, Leona Trammell, Stokely Ward, the heirs and legal representatives of Huldah Burch, the heirs and legal representatives of Squire Ward, the heirs and legal representatives of Brinkly Ward, Tensey Vessells, all heirs and legal representatives of Britton Ward, deceased. This day came the parties by their attorneys, etc.; petition granted and final distribution ordered, “the parties themselves being present and consenting to the same; it is ordered that the negro property on hand and other property on hand be forthwith equally divided between the heirs named in the motion of said complaint; that is to Rosa Bankston, formerly Rosa Ward, one share; Sally Terry, formerly Sally Ward, one share; Leona Trammell, formerly Leona Ward, one share; Stokely Ward one share; the heirs and legal representatives of Huldah Burch, formerly Huldah Ward, one share; to the heirs and legal representatives of Squire Ward one share; to the heirs and legal representatives of Brinkly Ward one share; to Tensey Vessells, formerly Tensey Ward, one share, &c.; dividing the property into eight lots, lot No. 3 to consist of Charlotte and Frank her infant child,” etc.; and the same entry showed that the division was approved by the court, and that “the court ordered the names of the eight heirs aforesaid to be placed in one hat and the eight lots in another, and the interest of each heir fairly drawn for; when by ballot drawn it appeared that Rosa Bankston drew lot No. 1; that Sally Terry aforesaid drew lot No. 2; that Leona Trammell drew lot No. 3; that Stokely Ward drew lot No. 4; that Huldah Burch's heirs drew lot No. 5; that the heirs and legal representatives of Squire Ward drew lot No. 6; that Brinkly Ward's heirs and legal representatives drew lot No. 7; and that Tensey Vessells drew lot No. 8. Therefore it is ordered, adjudged and decreed by the court, that each of the heirs aforesaid be and they are hereby forever invested with the fee simple and separate title to the negro or negroes and money which was by said allotments and ballots set apart to them; and that all right and title to the same be forever divested out of the other heirs who have drawn their separate shares in said allotments as also out of all other persons whatever; and it is ordered, adjudged and decreed by the court, that each of the heirs or parties entitled to a share in the foregoing allotments and division shall, by themselves or legal representatives, have the right to call upon the administrator or any other person having the possession or custody of said property and negroes, etc., take the same into their possession; to sue for and recover by any and all remedies known to our laws; to acquire possession and custody of their respective shares according to law, the legal possession of which is hereby granted and adjudged to the parties, and to give the administrator or other persons a receipt or release therefor in their own right,” etc.

There was also a copy of the motion or petition of Stokely Ward, as administrator, for distribution; and in it, in naming the distributees, the words “the heirs and legal representatives of Leona Trammell” were used.

Claimants introduced the depositions of Nicholas Trammell, Nathaniel Trammell and Green B. Baker, who testified that the plaintiffs were the children and grandchildren and heirs of Leona Trammell, deceased; that Sarah and Elizabeth married G. W. and Edmond Sawyer, in 1847; that two of the infant plaintiffs are the children of Elizabeth, who died in 1852; that Leona Trammell died in spring of 1838; that at her death her children were all infants; that Sarah was born November 29th, 1830; that Elizabeth was born January 18th, 1832; that Amelia E. was born May 12th, 1836; that Wm. H. was born March 11th, 1838; that Leona was the daughter of Britton Ward, who died about 15 or 18 months after the death of said Leona; that Leona was residing, at the date of her death, about one hundred miles distant from the residence of her father; that Charlotte and her infant boy Frank, the negro in controversy, belonged to said Ward at his death, and was set aside as the share of Leona Trammell, deceased, in the distribution of said Ward's estate; that the said boy had remained in the possession of N. Trammell, the husband of said Leona and father of said plaintiffs, from said distribution, when he recovered him, till he was levied on by execution in favor of said Boyle; that the said Ward had eight children, Squire, Stokely, Brinkly, Tursby, Huldah, Rosa, Sarah and Leona; that the heirs had all acquiesced in the said distribution of said es tate. Claimants introduced in evidence the revised statutes of Arkansas, adopted at the October session of the general assembly of said state A. D. 1837, from which both parties read certain sections of the laws of said state, and it is hereby agreed that the same may be referred to in the supreme court, without having the same copied in this statement of facts. Here claimants rested.

It was proven by the deposition of _______ that Leona Trammell, formerly Ward, was not the legitimate child of Britton Ward; that said Ward and the mother of Leona were never married; and it was proven by the statutes of Arkansas, that illegitimate children could not inherit except through their mother, in said state.

Thomas W. Harper testified that he knew the boy Frank; that Nat Trammell brought him to the county several years since, and always claimed him as his own property; heard him assert his claim years before said boy was levied upon, in the presence of his sons-in-law, the two Sawyers, and heard the Sawyers say that he belonged to Trammell; the boy Frank was notoriously known as the property of Nat Trammell; witness lived within one-half mile of Nat Trammell; never heard any doubts as to Trammell's title until the commencement of this suit; heard the Sawyers say that if they owned Frank they would not give him for any other negro they knew of; that the two Sawyers were living at the house of Nat Trammell at the time; heard Trammell claim negro Frank, and speak of him as his property frequently in the presence of the Sawyers, his sons-in-law.

C. B. King testified that he knew the boy Frank; Trammell had offered to sell him to witness while he was living in La Grange, some eighteen months or two years before the commencement of this suit. J. S. Patton testified that he levied the attachment of Boyle on the boy Frank while in the possession of Trammell at his tavern in La Grange. Trammell always claimed the boy as his own property; the Sawyers, his sons-in-law, were frequently at Trammell's, and one of them was living with Trammell. The boy Frank was notoriously known as Trammell's property; never heard Trammell's title doubted until the commencement of this suit.

The court instructed the jury as follows:

That if Leona Trammell was living at the time the distribution of the estate of Britton Ward was made by the probate court of Arkansas, then the portion of the estate of Britton Ward, which Leona Trammell could inherit, rested by the law of Arkansas in Nathaniel Trammell, her husband.

If the record of the probate court of Arkansas, which made the distribution of Britton Ward's estate, recites the fact that Leona Trammell was present in court when the distribution was made, either in person or by attorney, then the recital of the record is conclusive evidence of that fact, and cannot be contradicted by...