R. L. C. Henderson and another v. Sarah Ryan, 27 Tex. 670

Bell, J The judgment of the court below seems to have been founded on the opinion that the will of James G. Ryan was inoperative as to all the property, real and personal, acquired by him subsequent to its date. The will contains the following provisions: “ I will and bequeath my negro boy, Joseph, to Rachel L. C.

Henderson, and five hundred dollars in money.” “ Thirdly, I will and bequeath to my brother, Addison Ryan, any negro man, Sam, and my negro man, Jim, and all the balance of my property and effects.” The estate of the testator consisted of the three negroes named, which were owned by him prior to the date of the will; and of land and personalty acquired after the date of the will. The court adjudged, upon the verdict of the jury, that the bequest of the three slaves was valid, and passed the title to Mrs.

Henderson and Addison Ryan; but that the remainder of the estate, real and personal, was the community property of James C. Ryan and his wife, Sarah Ryan, and that upon the death of James 0. Ryan, without children, the surviving wife was entitled to the whole of the said community, after the payment of debts. This was error. The testator had no forced heirs at the time of the execution of the will, and he survived until our former law of forced heirship was repealed. He, therefore, had the right to dispose of his whole estate by last will and testament.

The will must be understood to speak from the time of the testator’s death, and whatever estate he then -possessed must he held to have passed according to its-terms. It is true that by the English law prior to the statute 1 Victoria, c. 26, a testator could not devise lands of which he was not seised at the time of making the will; but the rule of the English law was different as to personalty; and a gift of the whole of the testator’s personal estate passed all the personality which he might happen to possess at .the period of his death.

The construction of wills in these respects was regulated in England by the statute of 1 Victoria, c. 26, the 24th

section of which provides “that every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless-a contrary intention shall appear by the will,” Some of the American States have similar statutes, and in others the subject is left to judicial determination. We are of opinion that by the statute of wills of this State, a general gift of real and personal estate, will embrace and pass all the estate, real and personal, possessed by the testator at the time of his death.

The will of James C. Ryan was, therefore, effectual to pass the whole of his estate, real and personal, possessed by him at the time of his death. The court below did right, therefore, in enforcing the bequest of the slaves to Mrs. Henderson and Addison Ryan. The court below ought also to have proceeded to charge the debts of the testator upon the whole of the community; and out of the testator’s portion of what remained of the community after the payment of debts, the bequest of five hundred dollars to Mrs.

Henderson ought to have been satisfied, and the balance of the testator’s portion of the community ought to have been decreed to Addison Ryan in accordance with the terms of the will. We do not think it proper to discuss the question, whether the appellee, Mrs. Sarah Ryan, has forfeited her community rights. If she has, then she can recover nothing; if she has not, of course she can recover one-half of the community property after the payment of the testator’s debts.

This question may not arise upon a future trial, and we therefore forbear to discuss, for the present, what circumstances will be sufficient to deprive a wife, living apart from her husband, of her community interest in property acquired by him in this State, after then* separation. The former decisions of this court on this subject are known to the counsel. The judgment of the court below is reversed and the cause remanded. Reversed and remanded.