15 Tex. 285 | Tex. | 1855
The original petition, the amendment and vouchers made part of the petition, present the following facts: that the said J. D. Clements made his last will and testament which is as follows :
“ Republic of Texas, ) I, Joseph D. Clements, of the county “ Gonzales County. j and Republic' aforesaid, being sick “ and weak in body, but of sound mind, memory and under- “ standing, and considering the certainty of death and the un- “ certainty of the time thereof, and to the end that I may be “ better prepared to leave this world, do therefore make and “ declare this my last will and testament, in manner following, “ that is to say, 1st. I constitute and appoint Edward Dickin- “ son and Augustus Jones executors of my will. 2nd. I will “ and bequeath to my wife Rachael Clements and my daughter “ Louisa Jane Clements and my two sons Alexander, Isaac “ Baker Clements, my plantation on which I now live, known “ as league, No. —, lying on the Guadalupe river, about twelve “ miles above the town of Gonzales, on the east side of the said “ river, that is to say, all that portion of the said league which “ lies west of a creek which runs near the east line of the said “ league and the first creek west of John King, be the same “ more or less, which land is to be kept by my said wife for “ the purpose of rearing and educating my said children ; and “ further my said wife is now pregnant, and, from the course “ of nature, must soon bring forth another child; should that “ be the case, that child, if living, is to be entitled to an “ equal support, and equal share in the before described pro- “ perty when my youngest child comes of age, that is to say “ twenty-one years old; then and in that case, the before de- “ scribed land is to be equally divided between my said wife “ and the aforesaid children, but should any of my aforesaid “ children die before they arrive at the age of twenty-one, their “ interest or share of said land is to go to the remaining chil- “ dren in equal proportion, to-wit: my children before described.- “ 3rd. I do bequeath to my said wife and the children before
This will was duly probated on the 8th day of April, 1844, and recorded. The executors qualified under it and proceeded to administer the estate, by carrying out the directions of the will. One of them resigned, and the other died, and Stewart was appointed administrator, with the will annexed, who proceeded to administer the estate. The suit was commenced by Anderson who claims to have purchased from Mary Clements, residing in the State of Ohio, and it is alleged that she is the lawful widow of the said Clements, having been married to him in Ohio in one thousand eight hundred seven and never was divorced from him. Her vendee, the plaintiff, claims one-half
The 3rd Section of the Act of 5th February, 1840, (Hart. Dig. Art. 997,) after directing how a will shall be probated, has this proviso, “ But any person interested in the will may, “ within four years afterwards, require it to be proved in sol- “ emn form, or contest its validity before the Probate Court, “ and the final judgment thereon given shall be conclusive; “ provided infants, feme, coverts and persons non compos mentis, “ shall have the like period after the removal of their respec- “ tive disabilities.” If the wife, whose interest is represented by the plaintiff, has any interest in the question of the validity of the will of Joseph D. Clements, whom she claims to have been her lawful husband, that interest is certainly barred by the limitation cited. (See Ingram v. The Devisees of Ira Ingram, 2 Tex. R. 590.)
But it is said that the plaintiff has no interest in the will, and does not claim under the will, but is a stranger to it and not required to know what its contents are. It may well be questioned if the appellant can be so regarded. There is certainly an interest in the estate, because that the whole goes into the hands of the executor or administrator in trust, it is true, for the payment of all the community debts, and then the balance to be divided, the one-half to the heirs of the deceased and the other to the survivor. If the will has directed the debts to be paid in a way prejudiced to the community interest and not according to the law of community, she, the widow, would be interested in having the invalidity of the will' established. She does not claim under -the will, it is true, but it is not necessary that a party contesting the validity should claim under it. It is not because she claims under the will, that she has the right to contest its validity ; that would be absurd ;
She is interested in having the will invalidated, in another way. This will assumes to dispose of the whole of the estate of J. D. Clements as though it was all his separate property and not community. If she, under such circumstances, acquiesced in the will, after probate, beyond the term of four years, it seems that she would be precluded from contesting the validity of the will, and the disposition of the property made under it. It is believed that after its probate, it is to be regarded as a will, until it has been set aside by proceedings having that object directly in view. We cannot regard the widow claiming a community interest in the property of the estate, because that her right is dependent upon the fact that the property out of which she claims a community must be shown to have been acquired by the parties during the coverture, and not by the seprate means of one of them.
But, suppose it should be conceded that the widow was not bound to contest the validity of the will within four years ; can she he benefitted by the concession ? The most favorable aspect in which her rights can be placed, is, to regard her community interest as in trust in the hands of the administrator, who, after the payment of all the community debts, would then be ready to set apart the widow’s share; the administrator may be regarded in the meantime as a trustee holding for the widow’s benefit, and as such he would be regarded, unless he repudiated the trust and asserted his possession to be adverse to her rights, such as denying that there was any community property, and that he was administering upon it as such. The statute of limitation would commence running from the time of such adverse possession. If this adverse possession was by a notorious act, no actual notice would be required. This is
We will see how far the facts of this case come within the principles discussed and the cases cited. We set out the will at length in our statement of the case, for the purpose of showing that it assumed to dispose of the whole of the property, and that in so doing it repudiated the claim of the plaintiff,
Judgment affirmed.