Porter v. Burnett

Delany, J. Com. App. The view which we take of this case renders it unnecessary that we should discuss all the assignments of error which are urged by appellant. The fourth assignment is that the court erred in holding that the certificate was the separate property of the husband. In this we think there was no error. The conditional certificate was issued to him as a single man. If the marriage of Burnett before he became entitled to the unconditional certificate would have changed its character into community property (concerning which we express no opinion), it was upon the defendant to prove the date of the marriage. Prima facie the certificate was separate property, and in the absence of a statement of facts we must conclude that the finding of the court was correct. The seventh assignment is that the court erred in its judgment that the certificate descended to the heirs as real estate and not as personalty. In this we think there was error. Unlocated land certificates have, from the beginning of our history, been regarded as chattels. Randon v. Barton, 4 Tex., 292; Watkins v. Gilkerson, 10 Tex., 340; Cox v. Bray, 28 Tex., 247; Simpson v. Chapman, 45 Tex., 561. The unconditional certificate was doubtless procured by the administrator, as it was issued to him as such. Bo doubt heirs or distributees might consent to the location of certificates, and afterwards divide the property among them as real estate. But we think this would require consent, at least in the case of the wife. Her distributive share of the personal property of her husband is one-third, but she has only a life estate in one-third of his realty. Pasch. Dig., 3422; R. S., 1646. Supposing an estate to consist of a number of land certificates, each of an equal number of acres, and to be out of debt. The wife Avould be entitled to one-third of the certificates, and to have them set apart to her; and she might locate them as she chose, and own the land in fee; but if the administrator could locate them Avithout her consent, and change the character of the property, she would have only a life estate in the same quantity of land. It is admitted by the plaintiffs in their pleadings that the entire interest of the Avife in the property passed to the defendant by her conveyance. The precise date of this conveyance does not appear, but it must have been after the filing of her inventory in 1866, in which she included.the certificate and claimed it as community property. When Burnett died, in 1853, the wife and four children survived. There is some uncertainty about the names, those given by the court not being the samo as those given in the pleadings of [223] the plaintiffs; but we think it sufficiently appears by both that there were four children. Thus the wife took one-third, and the remaining two-thirds went to the four children, giving to each one-sixth. The court finds that one of the children died in 1863. One-half of her interest — that is, one-twelfth of the whole—went to the mother (Pasch. Dig., 3419), and the remainder in equal parts to the three surviving children. Thus the mother had five-twelfths, which passed by her conveyance to the defendant, and each of the children had seven thirty-sixths. The court further finds that James Burnett, another of the children, died in October, 1870, after the statute commenced to run against him. So that his interest passed to the defendant, as the statute did not stop running after his death. The plaintiff S. H. Burnett was barred when the suit was brought, and the defendant held his interest by limitation. Thus the defendant held and owned the entire property, except the one-sixth interest which the plaintiff Sarah inherited from her father, and the interest of one thirty-sixth which she inherited from her sister. It results that the plaintiff Sarah should have recovered seven thirty-sixths, the remaining twenty-nine thirty-sixths belonging to the defendant. We do not think the court erred in refusing to allow defendant anything for improvements made in 1854. Our opinion is that the judgment should be reversed and such judgment rendered by the supreme court as should have been rendered by the court below. Reversed and rendered. [Opinion adopted October 26, 1883.]