Morrison & Hart, Ex'rs, v. John D. Clark et al., 55 Tex. 437

Quinan, J. Com. App. The case presents as the important question involved, whether Byrdstone was the community property of William Gilliam and Margaret, his wife, or whether it was her separate property at the death of William. The conveyance of the property to Margaret after his death, prima facie renders it her separate property. She was then a single woman. Its acquisition in exchange for property which was conveyed to Margaret in William’s life-time, and to “her sole and separate use,” still further tends to establish that fact, that it was her separate property.

But it is contended that as the property which was paid as the consideration to Fisher and wife in 1863 for the lands conveyed to Margaret’s sole and separate use was community property, that the' property acquired must also be held community. This position is not, in our judgment, tenable.

It is unquestionably true that a conveyance of land made, whether to the husband or wife, or to both, is presumed to be community if made during coverture, and especially if the consideration paid is community; but it is not true that this presumption exists where, as in the present case, the conveyance is made to the sole and separate use of the wife. In such case the property, whether paid for by the separate means of the husband or the community funds, or the separate estate of the wife, becomes the separate property of the wife.

And where the separate means of the husband or the community effects make up the consideration, and the conveyance does not, as in this case it does, contain anything to indicate that it was intended as a gift, it may be shown by parol testimony that the deed was taken in the name of the wife by direction of the husband with the intention of making it her separate estate. Higgins v. Johnson, 20 Tex., 395. There is no necessity of such proof here. The intention that the property should be the separate property of the wife is stamped upon the face of the deed, and all the world has notice of the fact. Kirk v.

Navigation Co., 49 Tex., 215. If, however, it were necessary to establish otherwise that the intention in taking the deeds from Fisher and wife to Margaret was to make a gift from her husband to her, and that the property should be her separate estate, the proof is here in the record. It is declared in the plaintiffs’ pleadings that Margaret held $5,000 worth of property as a gift from her husband, and no other gift ■ than this of the land from Fisher is pretended. Margaret proves it by her testimony, and Mrs.

Haden testifies to Gillialn’s statement that the property was Margaret’s when the trade for the Byrdstone lands was being made, and that he claimed no interest in it. We conclude that Byrdstone was the separate property of Margaret; that it formed no part of the estate of William Gilliam, and was not subject to administration as such. But it is said that the Fisher property, being a gift to Margaret after the obligations upon which the judgments in favor of plaintiffs were rendered were incurred, that as a voluntary conveyance of property it is void as to them.

It may well be questioned whether this can be set up in this suit. There is no direct attack made here upon the deed from Fisher and wife as fraudulent. There is no allegation in plaintiffs’ petition respecting it. But it appears from the petitions in the suits wherein judgment was rendered against Mrs. Gilliam, that it was put in issue there, whether the plaintiffs should have a decree for the satisfaction of their debt out of the property held by Margaret as a gift from her husband, and plaintiffs’ failure to obtain it.

We think that having failed in that suit, they are precluded from again contesting the question whether this property is hable. But a gift from the husband to the wife is not necessarily fraudulent and void as to existing creditors. It might be a badge of fraud, a circumstance to be considered in determining whether the intent was fraudulent, if it were shown that he was then heavily in debt.

But it does not follow that because a man may be indebted to an inconsiderable, or even a considerable amount at the time, that he cannot settle a part of his property upon his wife or children, provided he retains an ample amount of property to liquidate his just debts. Van Bibber v. Matthis, 52 Tex., 407. ISTor will that settlement be affected because it may turn out afterwards from accident or ill-fortune, that his property may perish or be swept away. Perkins v. Perkins, 1 Tenn. Ch. Rep., 543, Cooper, Chancellor. Here it is abundantly shown that Gilliam was in prosperous circumstances in September, 1863.

He had lands and slaves, and horses and cattle. He had several thousand dollars in cash notes and $35,000 in Confederate money, which at that time was of considerable value. At his death the plaintiff alleges he left property to the value of $50,000, and of debts, except that to plaintiff, there is no proof to any considerable amount.

Is the gift to his wife of this Fisher property to be held fraudulent and void as against these creditors because it has followed from the fortune of war that slaves have been liberated and ceased to be property, or that wealth has taken to itself wings; that his cash notes have become trash, and his Confederate bonds but rags?

The gift to his wife in the then condition of the country, if it was intended as some provision for her out of his large estate against the calamities which might result from the conflict in which our people were then engaged, was not alone a prudent, but a meritorious act, and there is no rule of equity or good conscience which forbids us to uphold it.

The property which was purchased by Margaret with this donation we believe she is entitled to claim and hold, unaffected by any indebtedness of her deceased husband, and free of the claims of his creditors, as it surely is unaffected by any fraudulent intent or device to hinder, delay or defeat them. Sherman v. Hogland, 54 Ind., 578; Chambers v. Sallie, 29 Ark., 407; Brown v. Spicey, 53 Gfeo., 155; Emerson v. Bemis, 69 Ill., 537.

The verdict of the jury for the defendants is fully warranted by the testimony, and in our judgment should not be disturbed, unless there has been some error committed in the rulings of the court or the instructions given them calculated to work the plaintiff injury. Exceptions were taken at the trial to the rejection by the court of some of the answers of Margaret to interrogatories propounded to her by plaintiff. They were objected to as irrelevant. The appellants here do not point out in what respect they were relevant, and it is certain that they have not been injured by their rejection.

We have carefully considered the answers, and where they are not mere repetitions of her previous answers which were read, they are devoted to a statement of her present condition, and the disposition she had made of the community property since her husband’s death. In the view we have taken of the case, the inquiry into these subjects was immaterial and irrelevant. If the Byrdstone property was her separate property, it was no concern of her vendees what may have been done with the community property which came to her hands.

There are many assignments of error to the action of the court in giving and refusing instructions to the jury. It would be a tedious and unprofitable labor to examine each objection. For the most part the instructions relate to the powers and duties of the surviving wife as respects the community property and its administration.

It seems to have been assumed by the appellants, and indeed also by the court, that the conveyance by Fisher and1 wife to Margaret G-illiam, being for a consideration springing from the community, the property, although limited to her sole and only use, became community, and that acquired with it became community also. This, we have seen, was an erroneous view of the law. But the charge given and the charges asked were predicated upon this assumption. They have consequently but little relevancy to the trae issue in controversy. The controlling fact in the case is, that the property was the separate estate of Mrs.

Gilliam. That is decisive of the contest, and we would not be warranted in raising questions upon the rules governing surviving wives in regard to the community property, when such rules have nothing to do with the case in hand. It is enough to say that neither in the instructions given or refused has the plaintiff suffered any injury of which he can complain. Indeed, though they are upon questions merely abstract, they are very . generally correct; and where erroneous, the error has been on the plaintiff’s side.

On the whole case, and on whatever theory founded, it is not made to appear to us that the verdict of the jury is clearly wrong. On the contrary, we believe it to be right, and therefore the judgment ought to be affirmed. Affirmed. [Opinion delivered October 25, 1881.]