Shepherd v. White
| Decision Date | 01 January 1853 |
| Citation | 10 Tex. 72 |
| Parties | SHEPHERD v. WHITE. (Note 12.) |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Where the purchase-money is paid by the father, and the title is taken in the name of the son, it is presumed to be an advancement; but this presumption may be explained and rebutted by proof. Any written acknowledgment of the son that it was not so designed will rebut the presumption, where the controversy is between heirs.
Error from Montgomery. There was but one question in this case to be considered. Ought the will of the younger Shepherd to have been received in evidence in support of the right of those claiming under the will of his father?
The suit was brought by the widow and heirs of the younger Shepherd against the widow and representatives of the father to recover a tract of land. In defense, the will of the younger Shepherd was offered in evidence, containing a clause in which he acknowledged that the money for the land in question was paid by his father, and that the remaining payment due on the land was to be paid by him, and that he was to have the land. The title to the land was in the name of the younger Shepherd. This evidence was ruled out by the court, and the defendants excepted. There was a verdict for the plaintiffs, and the defendants brought the case into this court by a writ of error.Yoakum & Campbell, for plaintiffs in error.
N. H. Davis, for defendants in error.
We are not advised upon what ground the judge ruled out the evidence offered. It is presumed, however, that it was that, between the father and the son, the mere fact of the land being paid for by the father would not raise a resulting trust. This, in the abstract, is true, because the payment of the money by the father will be presumed to be a voluntary advancement; but this presumption may be explained and rebutted by proof that such payment was not intended as an advancement. Any written acknowledgment of the son that it was not so designed will rebut the presumption and let in the resulting trust. The will of the son was an express declaration of the trust, and was conclusive that it was not intended as an advancement. For this error in excluding the will the judgment is reversed and the cause remanded.
Reversed and remanded.
NOTE 12.--Same case, 11 T., 146; 16 T., 163.
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Jackson v. Jackson
...788, affirmed 163 N.Y. 574, 57 N.E. 1113); Short v. Short, 62 Or. 118, 123 P. 388; Hickson v. Culbert, 19 S.D. 207, 102 N.W. 774; Shepherd v. White, 10 Tex. 72 Bickford v. Bickford, 68 Vt. 525, 35 A. 471; Walston v. Smith, 70 Vt. 19, 39 A. 252 (semble); cf. Borrow v. Borrow, 34 Wash. 684, 7......
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Jackson v. Jackson
...163 n. Y. 574, 57 N. E. 1113); Short v. Short, 62 Or. 118, 123 Pac. 388; Hickson v. Culbert, 19 S. D. 207, 102 N. W. 774; Shepherd v. White, 10 Tex. 72 (senrble); Bickford v. Bickford, 68 Vt. 525, 35 Atl. 471; Walston v. Smith, 70 Vt. 19, 39 Atl. 252 (semble); cf. Borrow v. Borrow, 34 Wash.......
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...This presumption may be overcome by proof that it was the intention that the child should hold the property in trust. Shepherd v. White, 10 Tex. 72; Smith v. Brown, 66 Tex. 543, 1 S. W. 573. Parol evidence is admissible for such These cases do not contravene the rule that in the absence of ......
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