Wells v. Petree, 39 Tex. 419

Wells v. Petree

39 Tex. 419 | Tex. | 1873

Lead Opinion

Walker, J.

William A. Cook,, of the county of Walker, made his last will, and died in 1848, leaving Haney Cook, his surviving widow, and a numerous family of children, at least three of whom were minors at their father’s death; two of whom were married—Haney to the plaintiff Wells, and Missouri to the defendant Petree.

Cook died seized of a large landed estate in community with his wife. By his will he made a number of special bequests and devises to his children,, some of which are herein called in question. But by the eleventh clause of his will he devises to his wife Haney some 1800 or 1900 acres of land, a part of his headright, for and during her natural life, with the proviso that the land so devised shall be to her in lieu of any legal claim she may have to any portion of the land at his death. But he confers on her the power to sell or dispose of the same, if necessary for the maintenance and education of his minor heirs;

By the twelfth clause of the will, having in view the interest of his minor heirs, he gave to his wife all the residue of his estate, real and personal,, to be managed! and disposed of by her during her natural life in a way-most conducive to the maintenance and education of such heirs. By the thirteenth clause of the will he directs that at the death of his wife, Haney, the property devised to-her shall be equally divided among his children then living. The will appoints the widow and Peter Petree executors.

This will was probated at the Hovembeiz term,., 1848, *427The executors named accepted the trust and qualified ac- ■ cording to law.

In April, 1856, James Spiders was appointed guardian of Mary, Georgie and Thelisa, minor daughters and heirs'<• of Wm. A. Cook; John W. Cook was appointed guardian of Zion W. Cook, a lunatic; and in 1857, the executors - having administered the trust in accordance with the terms of the will, were discharged—the guardians having received the shares of money and property belonging to their wards, and the widow acknowledging herself " in receipt of the share coming to her.

On the fourth of April, 1859, Mrs. Cook sold and conveyed two hundred acres of the land devised to her for life • to Peter Petree, and on the twenty-eighth of January, 1862, she also sold and conveyed two hundred acres more, by deeds in fee simple, to said Petree. On the third of " August, 1867, she sold and conveyed in like manner one hundred acres to L. E. Stanley. In 1869 she also sold - two hundred acres to Jesse Shackelford; and afterwards ■ bargained and sold one hundred acres to B. B. Perry, giving a bond for title.

In 1869 Petree and wife sold two hundred acres of their-• purchase from Mrs. Cook to Hinson, and Stanley and. wife sold one hundred acres to W. A. Rollins, who conveyed the same to T. W. House.

The questions presented for our decision are:

1. Had Wm. A. Cook power and authority under the-law to dispose of his estate in the manner in which her did? Could he and was it his intention to put his wife-to an election whether she would take under the will or abide her legal rights independent of the will ?

2. Did she elect to take under the will; and if so, is she-bound by that election ; and what power of disposal does, the will give her over the lands devised to her for life ?

3. If she elected to take under .the will, did she relin*428quish her rights as a community partner in the lands devised to her 1

We answer the first inquiry: There can be no doubt but Mrs. Cook could have defeated the will of her husband if she had seen proper so to do, and maintained her interest in community property independent of any control his will could exercise over it; but not having seen proper to do so, we think the evidence clearly establishes "the fact that, with the full knowledge of her rights, she elected to take under the will, by which she and all persons claiming under her must be bound. (Carroll v. Carroll, 20 Texas, 731.) The fact that we derive from the principles of the civil law our law of property as between husband and wife, will not prevent either one of the marital partners by will placing before the surviving partner the right and power of election to take under the will, •or decline its provisions in favor of the rights secured by law. We think it was evidently the intention of the testator in this case to offer his wife such an election, in view of the advantages which might be secured to their ■children, who were the common offspring of both parents, and also the benefits which might arise under the will to the widow herself.

We think there could -be no doubt, from all the facts, •of Mrs. Cook’s election. She appears to have been an industrious, managing woman, considered by her husband, .and doubtless by the probate court, capable of executing his will, which she appears to have done.

For about nine years she managed, and during this time settled, his estate, and no complaint appears to have .been made against her, except that of her alienation of the lands referred to.

It appears that she died in 1870, and at her death we think her estate in the lands determined. There was •doubtless one purpose, viz., the maintenance and educa*429tion of the minor children, for which she might have sold the lands in fee. But it does not seem that this necessity ever arose ; indeed, the evidence negatives any such hypothesis. The children apear to have been kept at work, and not much regard paid to their education. The family made a comfortable living, and in 1856 the guardians received a considerable portion for each of their wards ; nor does it appear that any part of the proceeds of the sale of the lands was ever applied to the support or education of the children.

Admitting the validity of the will, and the election of the widow to take under it, and that the land was not sold for the support and education of the children, his honor the district judge, by the decree, appears to have held that the widow had a right to sell these lands by deed in fee simple, for her own support and maintenance. This we think is manifest error, and for this cause the judgment must be reversed and a decree rendered in this-court in conformity with the prayer of the original petition.

The conveyances of Nancy Cook must be set aside. Partition will be ordered of the 247-acre tract devised to Elmira Mary Cook, and of the 320-acre tract devised to-Zion W. Cook. The conveyances of those persons claiming under Nancy Cook will also be canceled and set aside, and all the lands belonging to the estate of Wm. A. Cook, deceased, at the time of his death, not devised, including-those devised to his wife, will be divided among the-children of said Wm. A. Cook, who were living at the time of the death of Nancy Cook.

Reversed and remanded.

Dissenting Opinion

Ogden, P. J.,

dissenting.—Not being able to assent to-the opinion of the court in this case, I deem it proper tosíate my reason for the dissent. In the first place Wm. *430A. Cook, the testator, having died before the passage of ¡the act of July, 1856, concerning wills, had no power to «dispose absolutely at his pleasure of more than one-fourth of his estate, he leaving a large family of children as his heirs. His will, therefore, so far as it came in conflict with the then existing statute, should be regarded as null and void, so far as three-fourths of his estate is concerned. (Haggerty v. Haggerty, 12 Texas, 460.) Again, Cook had no right to dispose of property not his own. And while it is admitted that much the greater portion of the property ¡bequeathed, including the lands, was community property between himself and wife, it must also be admitted that one-half of that community property belonged absolutely to the wife, and on the de'ath of the husband could at once be sold or otherwise disposed of by her, and only by her. It follows that the will of Cook wherein it attempts, if it does so attempt, to devise more than one-half interest in the community estate should be regarded as ■void. But it is claimed by counsel, and so held by (this court, that the surviving wife has elected to take .under the will, and therefore has surrendered her community rights. In the first place it may be asserted that ’the record contains no evidence of any such election; and in the next place, I have been unable to find in the will any requisition or condition of that kind. The will bequeaths to the wife the balance of the testator’s headlight league of land in lieu «of any legal claim which she might otherwise have to any part of Ms land at his decease. I cannot understand the will has any reference to the wife’s •land, but only to 7ii.s one-7ialf interest in the community ¡and his separate estate, and the condition required is that this shall be in lieu of her life-estate in one-third of the itestator’s estate which she would be entitled to under the statute of descent and distribution. She may have electo take under the will instead of under the statute *431referred to, but this election could in nowise affect her community estate. The terms of the will in this case are quite similar to those in the will in Carroll v. Carroll, 20 Texas, 731; and in that case a decree was ordered giving to the surviving wife one-half of the community estate, :as hers absolutely, unaffected by the will, and also giving her the portion devised to her under the will of her de-cased husband out of his half of the community estate; ■and such in my judgment should be the decree in this case, or at least the rights of the surviving wife should be recognized to that extent. And under this view of the law, the will of Wm. A. Cook could be considered valid only as to -the absolute disposition of one-fourth of his half of the community estate between himself and his surviving wife.