67 Tex. 406 | Tex. | 1887
The trial court found that the property in controversy was of the community estate of John C. and Sarah Gallion, that the former died testate in the year 1852, and that by the terms of his will the appellee was to have the land in controversy after the death of her mother. It was further found that Mrs. Gallion recognized the will and consented to take under it, and that all the beneficiaries under it did the same. The records of the county court having been destroyed by fire, the court also found that the acts of the parties in interest under it, in connection with all the evidence in the case, required a finding that the will was properly probated soon after the death of John Gallion.
We are of the opinion that these findings were justified by the evidence, or at least that it can not be said that the findings are without evidence to sustain them. The entire tract of six hundred and forty acres, of which the land in controversy is a part, was community property, and of that Mrs. Gallion owned one half. By the terms of this will, as found, the testator gave of that tract to each of his five children one hundred and eight acres, and the remaining one hundred acres, embracing that part used as homestead, he gave to his wife during her life, with remainder to Mrs. Trevathan. This clearly evidenced the intention of the testator to dispose of property which was not his own, and at the same time to confer upon his wife a right which she would not have, if his estate was solvent; for under the law then in force, the homestead belonging to a solvent estate would have been subject to partition as other real property. This presented a case in which the wife was called upon to elect whether she would take under his will.
Having only an undivided interest in the land, were the terms of the will ambiguous, the testator would be presumed to have intended to devise only" his interest in the entire tract, but the specific devises of a certain number of acres to each of his five
The subsequent partition between the several devisees in accordance with the will, and the subsequent conveyance by Mrs. Gallion to Mrs. Rogers of the one hundred acres, leave no doubt that the former knew that the will, in terms, disposed of the entire tract, and of the further fact that Mrs. Gallion elected to take under it. The evidence tends strongly to show that Mrs. Trevathan was a child of John C. and Sarah Gallion, though born out of wedlock.
There was evidence tending to show that Mrs. Gallion conveyed the land, reserving a life estate to herself, to Mrs. Trevathan before she made the conveyance to Mrs. Rogers, but the court made no speóific finding in this respect, and based the decision upon the will, and it therefore becomes unnecessary to inquire whether the evidence was sufficient to have required a finding that such a deed was made.
The declarations of Mrs. Gallion, proved by the witness Womack, were admissible—if for no other purpose—to show that she knew the terms of the will. The declarations of Mrs. Gallion, testified to by Lena and T. L. Trevathan, were admissible, and no other objection than that such evidence was hearsay was urged, and none other can now be considered. In so far as they testified to the making of a deed to Mrs. Trevathan by Mrs. Gal-lion, they were testifying to facts which become unimportant in view of the ground on which the case was disposed of.
The other assignments need not be considered further than they are embraced in what has already been said. The judgment will be affirmed.
Affirmed.
Opinion delivered February 18, 1887.