17 Tex. 177 | Tex. | 1856
Martha A. Marlow departed this life without issue, leaving David M. Marlow, one of the appellants, her surviving husband. Her mother had died a long time previous to her death, and her father married subsequently to her mother’s death, and there were several children, the issue of this second marriage. These children, being the half brothers and sisters of the said Martha A. Marlow, as also her father P. A. Walton, survived the death of the said Martha. She left three slaves as her separate property. Her husband and her father, some time after her death, agreed that the husband should retain the slaves, and that as he was entitled to half of them by law, he should give a note to the father for the other half, amounting to twelve hundred dollars. The note, with security, was given, and suit being brought for its recovery, the defendant pleaded a partial failure of consideraation, in this, that the father of the deceased was not entitled
The plaintiff excepted to the plea of defendants on the special grounds, that the entire half passed to the father and no portion to the brothers and sisters of the half blood, and that it.was not shown that the note was executed by fraud or mistake. The exception of plaintiff to the plea of the defendants was sustained, and the plaintiff recovered judgment for the full amount of the note.
The only question for consideration (as stated by counsel of appellee in his brief,) is as to the right of the half brothers and sisters of the deceased to claim any portion of her estate. The ruling of the Court below, sustaining the exception, proceeded on the supposition that they had no right, for if they had, there was a failure of the consideration of the note pro tanto, and the plaintiff was not entitled to recover the full amount from the defendant. The effect of the second and fourth Sections of the Act of 1848, regulating descent and distributions, (Hart. Dig. Art. 593, 595,) is to give one half of the estate of the deceased (she having no children) to the surviving husband, and, her mother being dead, the other half, as the law declares, shall be divided into two equal portions, one of which shall pass to the surviving father, and the other shall pass to the brothers and sisters of the deceased ; and the only question is whether the terms brothers and sisters include as well brothers and sisters of the half as those of the whole blood. The terms are general, and those of the half as well as those of'the whole blood come strictly within their scope and signification. If there could be any doubt upon the subject, that is dissipated by the provision in the sixth Section, (Art. 597,) which declares that where the inheritance is directed to pass to the collateral Idndred of the deceased, if part of such col-
There was error in sustaining the exception to the plea of defendants, and it is ordered that the judgment be reversed and the cause remanded.
Reversed and remanded.