64 S.W.2d 1037 | Tex. App. | 1933
The main question in the case, as both parties consider it, is whether upon the death of R. A. Baker, he having no child, one-half of the property in suit vested in fee in Mrs. Lula May Johnson, his surviving wife. Article 2571, R.S., reads:
"Where any person having title to any estate of inheritance, real, personal or mixed, shall die intestate as to such estate, and shall leave a surviving husband or wife, the estate of such intestate shall descend and pass as follows: * * *
"2. If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution; provided, however, that if the deceased have neither surviving father nor mother nor surviving brothers and sisters, or their descendants, then the surviving husband or wife shall be entitled to the whole of the estate of such intestate."
Further, article 2578, R.S., defines the rights of husband and wife, as follows:
"Upon the dissolution of the marriage relation by death, all property belonging to the community estate of the husband and wife shall go to the survivor, if there be no child or children of the deceased or their descendants; but if there be a child or children of the deceased, or descendants of such child or children, then the survivor shall be entitled to one-half of said property, and the other half shall pass to such child or children, or their descendants."
This last provision of the statute likewise yields, and has not application, where the husband by will otherwise specially devises his share of one-half of the community property. It is allowable to the husband by last will and testament to devise his one-half interest in the community estate. Article 8282, *1040
R.S.; Sutton v. Harvey,
It may be here observed that the doctrine of election would not have application to the present case, because the testator did not attempt to make disposition of the entire community property. It is only when under *1041 terms of a will to accept would be inconsistent with the legal rights of the wife that she is put upon her election to take under the will or claim under the law. Speer on Marital Rights in Texas (3d Ed.) § 323, p. 399.
The judgment is reversed and here rendered adjudging the defendant in error Mrs. Lula May Johnson to have under the will a life estate in the 320 acres, and in R. A. Baker's one-half of all the community real estate, with remainder in fee to the plaintiffs in error. The defendants in error, Mrs. Lula May Johnson and T. H. Johnson, to pay costs of the appeal and of the district court.