Rogers v. Trevathan

Citations

• 67 Tex. 406
• 3 S.W. 569
• 1887 Tex. LEXIS 895

Syllabus

<p>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:</p> <p>(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.</p> <p>(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.</p> <p>(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.</p> <p>(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