Sawyer v. Boyle

21 Tex. 28 | Tex. | 1858

Roberts, J.

The property in controversy certainly belonged to B. Ward before his death in the State of Arkansas. It was administered upon there by his son, S. Ward, as a part of his estate, and upon a distribution thereof, it was received from the administrator by Nathaniel Trammell, and, in that .‘State and in this, retained by him from that time, which was In 1842, up to the time of the levy of Boyle’s executions, in December, 1858.

The capacity in which Trammell received it is one of the principal matters in dispute. Appellants contend that he received it as their property and as their natural guardian. Appellee contends that he received it in his own right by virtue of his being then the husband of Leona Trammell, as the distributive share of her father’s estate, or that Leona being an illegitimate child, Trammell received it without any right, and has acquired a title to it by possession, or if the appellants were entitled to a share of B. Ward’s estate in right of their mother and they were not represented by guardian or in person when the estate was distributed, the decree of distribution was as to them a nullity, and from which it follows,, that Trammell and not his. children have whatever title to the property which his continued possession may confer.

One of the items of evidence to show in what capacity Trammell received the property, was a transcript of the record of the Probate Court of Arkansas relating to the distribution of said Ward’s estate. This shows that the administrator filed a petition for a distribution, in which he names the several parties who are entitled to distributive shares of the estate, and among them “ the heirs and legal representatives of Leona Trammell.” This petition is finally granted and in pursuance thereto the Court makes an order of distribution, and in the order the name of Leona Trammell appears-as one of the distributees, leaving off the designation “the heirs and legal representatives of” as indicated in the administrator’s petition. The negro in controversy is part of the property set apart as the share of Leona Trammell by said order. It was also shown that Leona Trammell died before her father B. Ward died, and that he was never married to her mother, and that by the laws of Arkansas illegitimate children could not inherit except through their mother.

The leading matters adjudicated in this order of the Probate Court were:

1st. That the estate should be distributed.

2nd. That the persons named were entitled to distributive shares of it.

3rd. That each distributee should hold in severalty the portion set apart.

Now as to whether one of these distributees, who were entitled as children of B. Ward, was then dead or alive, was a fact necessarily involved in the scope of the adjudication, but only incidentally so. That Leona Trammell was such child and so entitled as one of the eight distributees was adjudged. That established her heirship to the property set apart to her conclusively, except the contrary was shown by appeal or other direct proceeding by some party then having an interest in that property. The decree was founded on the basis of her then being alive. But that was not an issue which was specially tried, nor was it one of the leading objects of the adjudication. If she happened then to be dead, her heirs might adopt the division, and claim the share set apart to her. And if they did so the other distributees would not be injured and would have no right to complain. No one else could complain that the decree took for granted an incidental fact, which did not exist so as to defeat or annul the distribution. It may be asked, who was competent to try the issue of whether she was dead or alive, so as to make that determination conclusive ? Those of course who were her minor heirs or claim to be ; and her husband Nathaniel Trammell. Their interests in this issue would be adverse. The other distributees would have no interest in this issue otherwise than an incidental one. Therefore it is clear, that, with reference to the parties and object of this adjudication, the question of whether Leona Trammell was living or not, was merely incidental, and is not conclusively established "by it, as against persons claiming to be then her minor heirs who were not then represented.

So too the fact of her appearance in Court at said adjudication, being recited in the decree, may be evidence of her then being alive, but it is not conclusive for the same reason, it being a mere incident and not the main object of the decree. (1 Greenleaf Ev. Sec. 528 and references ; Id. 550.)

The effect of this record was to establish conclusively that Leona Trammell (or her heirs, if she were dead, and they adopted the distribution) was entitled to a distributive share of B. Ward’s estate.

Secondly it might establish prima facie, but not conclusively, that she was alive.

The most reasonable explanation of it, considering the petition of the administrator and orders of the Probate Court founded thereon, is that Nathaniel Trammell was present and represented the interest in her share of the estate. If she were then really dead, and he concealed that fact, he cannot avail himself of his fraud as against her minor heirs. Or if the designation of “ the heirs and legal representatives of ” was dropped from before the name of Leona Trammell, by mistake or inadvertance of the Clerk in entering the order, that could not be held to change the existence of a fact which had transpired, and which affected the interest of minors not there represented.

The fact, that the record designates two parties to take this share to-wit: “ the heirs and legal representatives of Leona ■“ Trammell ” and “ Leona Trammell,” renders it subject to explanation by the proof of facts to show who must have been intended. (Greenleaf Ev. Sec. 301.)

Upon the subject of the plea of the Statute of Limitations, it appears that Trammell was in the adverse possession of this property for several years, but no definite period of time is fixed by the witnesses. That could not operate as a bar to the rights of the minor children of Leona Trammell. (Wade ex ux. v. Johnson, 5 Humph. 117 ; Angel on Lim. Sec. 484.)

The Sawyers were married to their wives in 1847, who were then infants ; and were then not barred of their rights. If Trammell’s adverse possession commenced before that time, the Statute of Limitations would then have commenced to run.; but if his adverse possession commenced after that time,, they were protected from .the operation of the Statute by their coverture.

Without adverting more minutely to the several questions in the case, as presented by the record, it will be seen, from the view here taken of them, that the Court below erred in the instructions given to the jury. Judgment is reversed and cause remanded.

Reversed and remanded.