Sparks v. Spence

• Decision Date: 01 January 1874
• Parties: JANE SPARKS ET AL. v. MARTHA A. SPENCE ET AL.
• Court: Texas Supreme Court

40 Tex. 693

JANE SPARKS ET AL.

v.MARTHA A. SPENCE ET AL.

Supreme Court of Texas.

1874.

1. Property conveyed by the father to the children of himself and of a deceased wife is, if a part of the community estate, presumed to have been conveyed in discharge of the interest of the children in such community estate to the extent of the value of the property so conveyed.

2. Nor is this rule varied by the fact that the conveyance to the child purports to be a gift, unless it appears that it was the intention of the father to make a gift in addition to, and not in satisfaction of, the child's interest in the community; and such intention may be shown, though not expressed in the conveyance.

3. In a contest between heirs each must account for whatever was received by way of advancement out of the community estate, unless it is shown that it was given with a different intention; and when the advancements were made of other than the community estate the question of intention with which they were made should be submitted to the jury. In either case the advancement is to be estimated at its value when made, and is to be deducted from the interest of the child receiving it in the community property, which is to be considered with reference to its value at the same time.

4. It is error to charge the jury to allow only such advancements as are equal to the interest of the party receiving the same in the property sued for.

5. While the laws of Spain and Mexico remained in force in Texas as to descent and distribution, the increase of cattle inherited by the children as part of the community of the deceased mother became, during the minority of the children, the separate property of the surviving father, and prior to the introduction of the common law (March 6, 1840) there was no statute changing the rights of the father in such property.

6. From the date of the introduction of the common law the father was chargeable with the increase and proceeds of sales of so many cattle as the children were entitled to on the death of their mother, due allowance being made for expenses, labor, and losses.

ERROR from Bell. Tried below before the Hon. J. P. Osterhout.

The facts are fully stated in the opinion.

Herring & Anderson, for plaintiffs in error.

Walton, Green & Hill, for defendants in error.

GOULD, ASSOCIATE JUSTICE.

W. C. Sparks and wife, Sarah, at the time of her death in 1836, held as community property two leagues of land; one, on which they lived, in Brazos county; the other in Bell county; also a stock of cattle between fifty and one hundred in number. Five daughters and one son survived their mother, viz., Martha A., Harriet, Nancy, Elizabeth, Sarah and Stephen. In 1841 Martha A., the eldest daughter, was married to Isaac C. Spence, and at intervals after that, as in 1844, 1845, 1848, and _____, the others appear to have married, and, with the exception of Nancy, to have received from their father on marriage five cows and calves and a horse, saddle and bridle.

On July 5, 1846, W. C. Sparks conveyed to his daughter Martha A. Spence five hundred acres of the Brazos county league, the consideration expressed being natural love and affection. In February, 1847, he made a like conveyance to his son Stephen for eight hundred acres of the same league. In August, 1851, he, jointly with his second wife, Jane, whom he married about twelve months after the death of his first wife, executed a like conveyance to his daughter Sarah Hamner for one thousand acres of land in Freestone county, the separate property of his second wife. On July 10, 1852, he conveyed to his daughter Harriet Spence one-fourth of the league of land in Robertson county, apparently his separate property, the consideration expressed being four hundred dollars and natural love and affection.

To his daughter Nancy Elizabeth Bryant he conveyed, at some date not named, two hundred and sixty-seven acres of the Bell county league, which conveyance, we are left to infer, was like the others in its consideration and character.

In 1851 W. C. Sparks removed to the league of land in Bell county, and there, in 1857, he died, leaving a will. In this will he devised to the children of the first marriage (the plaintiffs) in equal shares 3,000 acres of the Brazos league remaining undisposed of, and 1,000 acres of land in Van Zandt county; and to Martha Ann Spence, daughter of his deceased daughter Nancy (who appears to have received no advancement in his life-time), he bequeathed and devised in addition 300 acres of land in Henderson county, a good horse, saddle and bridle, and five cows and calves. The Bell county league, the stock of cattle, inventoried at 525 head, and sundry other property of his separate estate, he gave and devised to his wife and children of the second marriage. In 1858 this suit was brought by the children of the first marriage and their representatives against the children of the second marriage and their mother, as executrix, claiming as heirs of their mother one-half of each of the two leagues of land, and one-half of the increase and proceeds of the cattle. On being required by the court to do so, the plaintiffs elected to give up the lands devised to them under the will, as being of less value than their interest as heirs of their mother's community interest in lands attempted to be devised away from them. The defendants set up the various conveyances to plaintiffs as advancements intended and accepted in satisfaction of their interest in the community.

The charge of the court was to the effect that if the advancements made by W. C. Sparks out of his own property to any of the plaintiffs were equal in value to their interest in the property bequeathed and devised to defendants, to find for defendants as against such plaintiffs.

No instructions were given to allow these advancements at all, if made out of the community estate, nor to allow them pro tanto if of less value than the interest of plaintiffs as heirs of their mother. The charge also in effect held W. C. Sparks responsible for one-half the increase and proceeds of the cattle from the time of his wife's death. The plaintiffs recovered a judgment for one-half of each of the leagues of land, to be laid off to them out of that part of the leagues not conveyed away by W. C. Sparks in his life-time; also for the sum of $7,052 coin, as their share of the proceeds and increase of the cattle. A motion for new trial being overruled, the defendants have appealed, assigning as error the charge of the court, especially the charge to find interest in favor of plaintiffs on the value of the cattle; also other matters not material to be noticed.

We think the record exhibits errors going to the foundation of the suit, and which cannot be overlooked, though they have not been definitely assigned.

Some of the plaintiffs received from their father in his life-time, and have long enjoyed, part of the community lands, for one-half of which they sue. These conveyances purport to be gifts, and are prima facie advancements on the interest of the children in the community. The judgment rendered allows these plaintiffs to retain the share thus received, and gives them in addition their full interest in the entire half of the community lands. The father, it is true, might have so conveyed as to show an intention to make a gift in addition to, and not in satisfaction of, the interest of his child in the property, part of which he conveys. Proof might be made that such was his intention, though not expressed in the instrument. But it is most unreasonable to assume such an intention in the absence of proof. The natural conclusion is that the conveyance is made in discharge in full or in part of the obligation the parent is under to give the child his legal interest in the community estate, of which the land conveyed is part. The principle recognized in courts of equity as to advancements by a parent to a child is laid down as follows: “Where a debt exists from a parent to a child, an advancement upon the child's marriage, or upon some other occasion, of a portion equal or exceeding the debt in the parent's life shall prima facie be deemed as...