Moss v. Helsley

Citations

• 60 Tex. 426
• 1883 Tex. LEXIS 352

Syllabus

<p>1. Wills—Judgment.— Under statute giving to the district court original and exclusive jurisdiction of the probate of wills, its judgment annulling and setting aside a will was conclusive, and in the absence of evidence showing that the validity of the will was put in issue by the pleadings, every presumption will be indulged in favor of the judgment.</p> <p>2. Legacies.—If in the settlement of an estate there is a deficiency of assets, it must be supplied, first, from the general legacies, and the special legacies will not abate in favor of creditors until the general legacies are exhausted. But if special legacies cannot be supplied from the particular fund designated, the legatee cannot be compensated out of other effects of the estate.</p> <p>3. Will.—While the husband cannot dispose, by will, of his wife’s community interest, yet if he attempts to do so, and she should elect to take under the will, she would be thereby estopped from afterwards .asserting her right to the community.</p> <p>4. Same.— The intent to dispose, by will, of the husband or wife, of the community interest of the connubial partner, must be evidenced by explicit language. A will by the husband, devising “ my interest in about one thousand six hundred acres of land patented to Rice M. and Mary S. Gate-wood,” which was community property, conveyed only the husband’s undivided half thereof.</p> <p>5. Same.— Resort may be had to all the provisions of a will in a case of doubt, to determine whether it was the purpose of the testator to dispose of his wife’s interest in community property.</p> <p>6. Same.— The husband made a deed, conveying community land, which was not delivered. Held, that the wife who, as executrix, after the husband’s death, refused to deliver the deed (there being no fraudulent intent on her part), could not be made liable to parties claiming under the deed for the value of their interest in the land lost thereby.</p> <p>7. Void bequests.—A special bequest to one who was