Wells v. Petree

¶1dissenting.—Not being able to assent to-the opinion of the court in this case, I deem it proper tosíate my reason for the dissent. In the first place Wm. *430A. Cook, the testator, having died before the passage of ¡the act of July, 1856, concerning wills, had no power to «dispose absolutely at his pleasure of more than one-fourth of his estate, he leaving a large family of children as his heirs. His will, therefore, so far as it came in conflict with the then existing statute, should be regarded as null and void, so far as three-fourths of his estate is concerned. (Haggerty v. Haggerty, 12 Texas, 460.) Again, Cook had no right to dispose of property not his own. And while it is admitted that much the greater portion of the property ¡bequeathed, including the lands, was community property between himself and wife, it must also be admitted that one-half of that community property belonged absolutely to the wife, and on the de'ath of the husband could at once be sold or otherwise disposed of by her, and only by her. It follows that the will of Cook wherein it attempts, if it does so attempt, to devise more than one-half interest in the community estate should be regarded as ■void. But it is claimed by counsel, and so held by (this court, that the surviving wife has elected to take .under the will, and therefore has surrendered her community rights. In the first place it may be asserted that ’the record contains no evidence of any such election; and in the next place, I have been unable to find in the will any requisition or condition of that kind. The will bequeaths to the wife the balance of the testator’s headlight league of land in lieu «of any legal claim which she might otherwise have to any part of Ms land at his decease. I cannot understand the will has any reference to the wife’s •land, but only to 7ii.s one-7ialf interest in the community ¡and his separate estate, and the condition required is that this shall be in lieu of her life-estate in one-third of the itestator’s estate which she would be entitled to under the statute of descent and distribution. She may have electo take under the will instead of under the statute *431referred to, but this election could in nowise affect her community estate. The terms of the will in this case are quite similar to those in the will in Carroll v. Carroll, 20 Texas, 731; and in that case a decree was ordered giving to the surviving wife one-half of the community estate, :as hers absolutely, unaffected by the will, and also giving her the portion devised to her under the will of her de-cased husband out of his half of the community estate; ■and such in my judgment should be the decree in this case, or at least the rights of the surviving wife should be recognized to that extent. And under this view of the law, the will of Wm. A. Cook could be considered valid only as to -the absolute disposition of one-fourth of his half of the community estate between himself and his surviving wife.