Rogers v. Trevathan
Rogers v. Trevathan
Opinion of the Court
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.
Reference
- Full Case Name
- P. H. Rogers v. T. L. Trevathan and Wife
- Cited By
- 32 cases
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- Published
- Syllabus
- Will — Construction — Homestead — Election —Acquiescence —Evidence—Limitation.—A testator who died in 1853, and who, at his death, lived with his wife and children on six hundred and forty acres -of laud which was community property, gave to his-five daughters one hundred and eight acres each, and the remaining one hundred aeres, on which the' homestead was situated, he gave to his wife, daring her life, with remainder in fee to one of appellees, who was the daughter of his wife. The widow and all the immediate beneficiaries recognized the will, and received the property bequeathed to them. The surviving widow, in 1857, conveyed the homestead hundred acres to appellant, who was one of the five daughters, who held possession thereof until 1883, when suit was brought by the appellee to recover the one hundred acres devised to her in remainder, the widow having died in 1883. Held: (1) Though the will evinced a purpose to dispose of the wife's community interest in the six hundred and forty acres, it conferred on the wife a right she did not possess under the laws in force, for, under the law as then existing, the homestead belonging to a solvent estate would have been subject to partition as other property. (3) Thei presumption that would otherwise obtain that the testator intended to dispose of only his undivided interest, is repelled by the specific bequests which included the entire tract, and by the estate in remainder. (3) The partition between the widow and children, in accordance wiili the provisions of the will, and the deed from the widow to appellant, who was one of them, conveying the homestead tract, showed the election of the widow to take under the will, and the knowledge of appellant of its provisions. (4) The declarations of the widow to the effect that her husband had given all the children land except the appellee, and she was to have the land the widow lived on after her death, were admissible to prove knowledge on the part of the widow of the provisions of the will. (5) Limitation did not run against the appellee, who was under coverture from the date of the deed made by the widow until the death of the latter, and a judgment in her favor for the one hundred acres devised to her in remainder, was affirmed.