Harris v. Petty

Citations

• 66 Tex. 514
• 1 S.W. 525
• 1886 Tex. LEXIS 552

Syllabus

<p>1. Assignment of errors—Practice—Trustee—Natural and appointed guardians —Deed construed—In 1868, a wife, joined by her husband, conveyed a tract of land, part of her separate property, to a trustee for the use.and benefit of their minor children. The deed provided that the trustee should have the power to sell the property at the request of the minors, made through their legal and natural guardians. No guardian was appointed, and in 1871 the trustee, at the request of the parents, sold the land. In a suit brought for the land by one of the minors, the trust deed and the request to the trustee to sell the land, were copied into the statement of facts as parts of the chain of title relied on by the defendants. Held:</p> <p>(1) The powers with which the trustee was invested being matters of law and apparent from the record, the validity of the sale could be determined without an assignment of error.</p> <p>(2) Under the law of March 20, 1848, no action of any court was necessary to constitute the father the guardian of the persons of his minor children, and of such portions of their estates as were given them by him. (Byrne v. Love, 14 Tex., 87.)</p> <p>(3) Under the act of August 15, 1870, the father, if living, and the mother after his death, were entitled to the guardianship of the persons of their minor children, but were only entitled to be appointed guardians of their estates, although the estates may have been given by such parent.</p> <p>(4) The grantors intended to empower the trustee to make sale of the land under certain restrictions, and the deed should be construed so as to give effect to that intention.</p> <p>(5) Under the act of March 20, 1848, a guardian of the estate of a minor having a natural guardian, could be appointed only when the minor was entitled to an estate not derived from the natural guardian, and the natural guardian was incompetent, or was mismanaging or wasting the estate.</p> <p>(6) At the time of the execution of the deed of trus