3 S.W.2d 830 | Tex. App. | 1928
It is the established rule that where property is purchased by the husband with the wife's separate means, it is the wife's separate property, if she can trace her money to the property for which it was paid. The simple question in the present case is whether the circumstances are sufficiently explicit to show that it was the separate means of the wife that paid for the property. There is no direct evidence tending to show that the consideration, in part or in whole, was paid out of the insurance money of the wife. Although the inference is allowable that the wife had separate means through insurance money sufficient to pay the consideration, still the circumstances relied upon to trace the insurance money to the payment of the consideration fail of legal force and effect to overcome the presumption to the contrary. The purported simple statement of the wife that her husband "had every cent of money she had" was objected to, and is here complained of as illegal evidence, in that it was hearsay and self-serving. The remarks were of a brief general nature, and not at all specific as to amount of money or as to the date or character of possession by the husband It is a mere conjecture as to what "money" she was referring to — whether insurance money or money made in keeping boarders. The evidence is clearly within the restriction that it is not allowable to parties to support their claims by proving self-serving declarations. Hence that statement cannot be considered. And the purported single statement of the husband, relied on as an admission, to the effect that "the property belonged to his wife," is not of itself and alone of controlling weight, since satisfactory explanation is otherwise made by which its effect is counteracted. In this situation it may not be determined that *832 appellees discharged the burden of proof placed upon them to trace their mother's separate funds to the property. It would be mere conjecture to say so. Yet that conclusion would not operate to defeat appellees' recovery of any interest in the land, in view of the evidence in the record.
It is conclusively shown that the 70 acres was acquired during the marriage, for the most part entirely on credit. The presumption would be that it was community property. It may not be determined that the presumption was overcome by evidence to the contrary. There was proof that a release of the vendor's lien notes was executed in 1909, after the death of the wife in 1907. While this release evidences payment of the vendor's lien notes, yet there is no proof as to when the payments were in fact made, or by whom. The presumption would be that each note was in fact paid when due. In this presumption, with no proof to the contrary, the payments were all made during the lifetime of the wife. It rests in mere conjecture that the separate funds of the husband were used in paying the notes or any part of the consideration for the land. It is not more certainly shown that the husband's separate funds, if any he had, went to pay the consideration than the community earnings. In such uncertainty the legal presumption that the 70 acres was community property is not sufficiently counteracted, and should stand established and of controlling weight. The appellees were therefore entitled to recover jointly, instead of the whole 70 acres, a one-half undivided interest therein. The appellants jointly were entitled to the other one-half interest, in virtue of the will of M. O. Minter.
The judgment is accordingly modified so as to allow appellees jointly to recover a one-half undivided interest in the 70 acres, and, as so modified, the judgment will be affirmed, the appellees to pay costs of appeal.
