66 Tex. 55 | Tex. | 1886
The plaintiff in error and Lour ana Cartwright, who died about the year 1867, were husband and wife. They had eight children, of whom five survived their mother, and three died prior to her death, leaving children. The property in controversy was of the community estate of A. and Laurana Cartwright, and after the death of the latter, S. W. Moore acquired whatever interest certain grandchildren of Mrs. Cartwright, whose parents died before their grandmother did, took by inheritance from her in the community estate. These facts appear from the pleadings of the plaintiff, S. W. Moore.
A judgment was rendered in his favor upon the same basis as though he had purchased from grandchildren of Mrs. Cartwright, whose parents survived her. This was error. This question was considered in the case of Burgess v. Hargrove, 64 Tex., 110, in which it was held that other descendants than children do not take under the statute regulating the descent of community property, if a husband, wife or child survive. P. D. 4642 ; R. S. 1653. By inheritance from Mrs. Cartwright, those from whom S. W. Moore bought took nothing, and he, through this source, acquired nothing.
The petition, however, alleges that one of the children of Mrs. Cartwright, who survived her, since died intestate, unmarried and without issue, but it does not appear from the averments of the petition, whether she died prior to the pinchase by S. W. Moore from some of the grandchildren of Mrs. Cartwright, nor does it appear that the conveyances to him were such as would pass an after acquired title; hence, with the record before us, we are unable to determine whether S. W. Moore has any interest whatever in the property for which he sues.
The views already expressed, render it unnecessary to consider any other assignment than that already considered. The rights of the child of Mrs. Watson, who did not convey to Moore, in so far as claim is made through inheritance from Mrs. Cartwright, stand, of course, as do those of Moore; but such child, and any other grandchild of Mrs. Cartwright similarly situated, may take by inheritance from any of her children, who have died since her decease, under the laws regulating the descent of other than community estate. For the error mentioned the’judgment will be reversed and the cause remanded.
Beversed and Bemanded.
[Opinion delivered April 13, 1886.]