Smith v. Butler

• Decision Date: 03 June 1892
• Citation: 19 S.W. 1083
• Parties: SMITH v. BUTLER <I>et al.</I>
• Court: Texas Supreme Court

19 S.W. 1083

SMITH v.BUTLER et al.

Supreme Court of Texas.

June 3, 1892.

Appeal from district court, Fannin county.

Action by Martha Smith, by next friend, againt Matthias Butler and others, claiming an undivided one-sixth interest in her grandfather's land, being community property by inheritance from her grandmother, and for a partition of the land, and for a decree declaring a legacy under her grandfather's will a charge upon the land devised

thereunder to defendants.Judgment entered that plaintiff take nothing by her suit, in so far as she sought partition, but a decree made declaring the lands charged with the legacy as prayed.Plaintiff appeals.Affirmed.

Evans & Evans and Brown & Bliss, for appellant.Richd.B. Semple, for appellees.

STAYTON, C. J.

Ransom Butler died testate, leaving a widow, two children, and one grandchild, and possessed only of community property.The landed estate consisted of two tracts of land, each containing 160 acres, and upon one of these the family resided.The homestead tract, together with all household and kitchen furniture, stock, farming implements, money, and claims on hand at the time of his death, less five dollars, were given to his wife, subject to the payment of his debts, "to be disposed of or consumed as she may see proper during her natural life;" and the will further provided that, "after payment of all just debts due by her, I will and devise that the remainder of the personal property, money, and effects left by her be equally divided between my son, Matthias Butler, and my daughter, Lucy Lucretia Pitman, share and share alike."Subject to the rights conferred in the wife in the homestead tract, he devised that to his daughter and her children, and gave the other tract to his son.He gave to his granddaughter the sum of $500, $5 of which was to be paid with the sum named in the bequest to his wife, and the balance to be paid by his son and daughter out of the parts of the estate given to them, each to pay one half of the sum on contingencies mentioned in the will.The wife of Ransom Butler subsequently died, leaving a will, which was never probated, by which she bequeathed all her personal estate to her daughter.This suit was brought by the granddaughter against the devisees in her grandfather's will, to recover an undivided one sixth of each of the tracts of land which she claims through inheritance from her grandmother, and also to recover the value of her interest in personal property claimed to belong to her grandmother's estate, which she alleged had been converted by the defendants.She also sought partition of the land, and, as the legacy given to her by the will of her grandfather was dependent for its payment on her marriage, which had not occurred, she sought a decree declaring the legacy to be a charge on the land devised to her uncle, aunt, and children, alleging, as ground for such relief, that the defendants had no property subject to execution, had declared their intention to dispose of the lands — which she feared they would — to some innocent purchaser, whereby she would become remediless.Defendants answered by general demurrer, special exception to so much of the petition as related to the legacy given to plaintiff by the will of her grandfather, pleaded not guilty, denied the averments of the petition, pleaded the statutes of limitation based on three, five, and ten years' adverse possession, as well as limitation of two years against the claim for personal property alleged to have been converted.All the exceptions to the petition were overruled, and, upon trial upon the merits, judgment was entered that plaintiff take nothing by her suit in so far as she sought partition, but a decree was entered declaring the lands charged with the legacy given to plaintiff by the will of her grandfather.At the time of the death of Mrs. Butler, there only remained of the personal property on hand at the death of her husband property valued at $210, and she left other personal property valued at $215.Of the personal property on hand at the death of Ransom Butler, that exempt from forced sale was of the value of $270, and that not exempt was of the value of $570.During the trial, evidence was introduced, without objection, tending to show that Mrs. Butler elected to take under the will of her husband, and it is now insisted that such evidence was not admissible under the pleadings.The petition alleged ownership of a part of the real and personal property in the...