Uraney Wilkinson's Heirs v. Wilkinson

Hemphill, Ch. J. Two questions arise in this case, 1st. Does the land acquired by the husband, the head of a family, under the Act of January 4th, 1839, form a part of the community property ? 2. Had the wife, in the present case, acquired such an interest in the land in controversy, as that at her death an estate therein, descended to her heirs ? Under the laws of Spain, in force at the date of this Act, and under our present laws, the partnership between husband and wife in property is not, as it is in several countries of Europe, a universal partnership. It did not embrace property owned by the parties before marriage, nor all of their future acquisitions, but those only which were attained by the industry, the labor or negotiation of one or both of the parties; those in fact, which arose ex questu, or by onerous title; and not those by lucrative title, such as a legacy, inheritance or donation made separately to one of the partners in matrimony. (See Commentaries of LLamas on 16th Law of Toro.) These last acquisitions are not the fruit of the joint or several labor or diligence of the parties, but arise from the personal merits of the donee. It is admitted that mere donations are the property of the partner to whom the gift is made. But among commentators there exists quite a conflict of opinion as to whether donations which are remuneratory in their character, though made to the husband, should not be esteemed a portion of the gains of the marriage. This conflict and the opinions of various authors may be seen at large in the Commentary of LLamas on the 77th Law of Toro. It will not be necessary to canvass the nice distinctions suggested by the learning and acuteness of jurists on this subject. In Yates v. Houston, (3 Tex. R. 433,) we have decided that grants of land made to married men, under the colonization law of 1823, were community property; and, as such, subject to division between the surviving and the heirs of the deceased partners of the marriage; and there is no such marked distinction between the grants under the colonization law of 1823, and those under [243] the Act of 1839, as to operate an entire change in the character of the right in the property, making the first community, and the last separate estate. By the law of 1823, the Commissioner’s fees, office fees, stamp paper, surveying fees, &c., were required to be paid before the issue of the grant; and to the grant was attached also the onerous condition of cultivating the land within two years. Under the Act of 1839, the head of a family was entitled to his grant on paying the surveying fees and fees of office, and on the further condition that both the grantee and his family should remain and reside permanently within the Republic, and do and perform any and all duties required of other citizens, for the term of three years. The advances of money in the shape of fees from the colonist or emigrant amounted to nearly the same under both laws; and though the emigrant, under the Act of 1839, was not required to settle upon and cultivate the particular land granted, as was the colonist under the law of 1823, yet the duties exacted of him were nearly tantamount in their character. The object of both laws was the same: to reclaim the wilderness from the savage, and fill the country with a hardy, industrious, intelligent and reputable population. Under the first law, the colonist was required to cultivate the land granted; under the latter, the grantee was required to perform all the duties of citizens, for three years. And what were these duties at and after the passage of the Act of 1839 ? The country was then at war with a powerful nation. Her whole frontier, from San Antonio to Red river, was desolated by continuous inroads of barbarous savages. Citizens who remained there were compelled to resort to block-houses for protection. The husband was liable at any time to be called out to repel incursions, or march on distant expeditions, furnished not by the Government with supplies of food, clothing and ammunition, but out of the scanty means of the joint labors and toils of himself and wife; and devolving upon the latter, during his absence, the management, protection and support of herself and family; and thus, of necessity, exposing her not only to the toils and privations, but to the dangers and cruelties of savage warfare. Can it be said that the grant was in the nature of a remuneration for the personal merit of the husband alone? This is repugnant to the facts of the case and to common sense. Without marriage, as a single man, he would have been entitled to but three hundred and twenty acres. Does the mere fact of his marriage give him, for his isolated, individual merits, three hun [244] dred and twenty acres more, his wife being regarded as a mere cipher, possessing no merit, and not at all within the scope of the bounty of the Government ? It is a fundamental principle of our law, and always has been, and I presume always will be, that marriage does not divest the wife of her rights in property, and that in the acquisitions made after marriage both partners, with some exceptions, are entitled to an equal share. Is it to be supposed, on principle, that the Government whose laws so sternly protect the equal rights of the wife, would grant to a husband twice, and under former laws three or four times, as much land as to a single man, and this merely with a view to the separate benefit of the husband, without any regard- whatever to the wife, as the meritorious consideration of the grant ? We think not. Such injustice, under a system which recognizes and secures the rights of married women, would be too palpable to receive the sanction of a Court, unless such were the plain meaning of the law. Grants of land from the Government have, so far as we have been able to ascertain the rule, under the ancient authorities in Texas and the adjacent provinces, been always regarded as common property between husband and wife. These donations we believe to have been intended for the joint benefit of the partners in matrimony. They were secured by their joint means, and, in effect, by their joint diligence and toils; and, as such, the land in this controversy must be regarded as community property; and the plaintiffs, the heirs of the deceased wife, are entitled to an equal share with the surviving father. The second inquiry, whether any such right had vested in the wife in the land, as would descend to her heirs, must be answered in the affirmative. The conditional certificate was issued and surveyed in the lifetime of the wife. She lived for three years after the issue of this certificate; and before her death, the husband was clearly entitled to the grant of the unconditional certificate. He had the control of the community; and her rights and those of her heirs, cannot be affected by his laches in applying for the certificate. The case is clearly distinguishable from that of Webb v. Webb, in the 15th vol. Tex. R. In that case nothing had been done before the death of the wife, which would attach an equity, in favor of the heirs of the wife, upon the grant issued after her death to the husband. It was not shown that any legal step had been taken before her death, to secure the land or a title. We [245] are of opinion that the judgment be reversed, and that judgment be entered for the plaintiffs, and that the cause be remanded to the District Court for further proceedings in accordance with law and the agreement of the parties. Reversed and reformed.