Geo. C. Wimberly et al. v. J. Bailey et al., 58 Tex. 222

Statton, Associate Justice. In the disposition of this cause it will not be necessary to consider the assignments of error in detail, for the questions involved may be reduced to two propositions r 1st. Begarding the property in controversy as of the community estate of W. S. Bailey and his wife, Mrs. 0. Bailey, was she in such attitude, in reference to the estate under the will, as to authorize her to set apart to W. D.

Bailey, during her life, his share of the estate of his father, as well as to make an advancement to him,. which would preclude him or any one claiming under1 him from claiming, as against the other children, any part of either the estate of the father or herself? We are of the opinion that this proposition must be answered in the affirmative. In so far as the right of Mrs. Bailey to make an advancement-to her son out of her own estate is concerned, sufficient to bar his right after her death, as against the other children, cannot be questioned. The provisions of the will of W. S.

Bailey, by which his entire estate was given to his wife during her life, with remainder to the children in equal shares, was for her benefit, and imposed upon her no restraint upon her power to distribute the estate among the children during her life. Having such power, no good reason is perceived why she might not during her life set apart to one or more of the children, in money or property, a sum equal to the share to which such child or children would be entitled under the will of the father and the statutes of descent and distribution in both estates. The evidence clearly shows that Mrs.

Bailey did pay to W. D. Bailey during her life, a sum equal to what would have been his full distributive share in the estates of both parents, and this under an express agreement that it should be and was received by him in full of whatever claim he might have in both estates. This adjustment could not have been disregarded by W. D. Bailey, and a claim by him have been asserted against the other heirs for a further share of either estate. One claiming through W. D. Bailey, with notice that he had received his full share of 'the estates, would occupy no more favorable attitude than himself.

The evidence, however, shows that Mrs. Bailey was in the actual possession of the land in controversy until her death, claiming adversely to W. D. Bailey, and that immediately upon her death the other children took possession of the property in their own right, and this before the registration of the judgment through which the appellants claim. This, under the repeated decisions of this court, must be held to have given notice to the appellants. Watkins v. Edwards, 23 Tex., 448; Hawley v. Bullock, 29 Tex., 223; Mullins v. Wimberly, 50 Tex., 466; Manwaiving v. Templeman, 51 Tex., 212.

Under the will of her husband, Mrs. Bailey was given full power to manage or sell any part of the estate which her husband left, as she might deem best for the family, and was authorized to manage the estate without the control of the probate court. It is not shown that Mrs. Bailey had any separate estate, and a fair inference from the record is, that the money paid to W. D. Bailey was regarded as a part of the property in which all had an interest. [Opinion delivered December 19, 1882.] It is admitted to have been proved “ that the payment of §800 to W. D. Bailey by Mrs. 0.

Bailey was intended by all the parties to the transaction, and was so undjrstood by and between Mrs. C. Bailey and W. D. Bailey at the time, to be a full advancement made to him in anticipation, payment and satisfaction of all his interest in the estates of Mrs. 0. Bailey and W. S. Bailey then existing, or that might exist at his mother’s death.” The record shows that none of the other children, four in number, had ever received anything from the estates of their father or mother. 2d. It is claimed that the failure of Mrs. Bailey to put upon record the relinquishment made by W. D.

Bailey to her of all interest which he might have in the estates of both parents, under the registration laws renders that relinquishment void as to the appellants, who claim to have acquired a lien upon the interest of W. D. Bailey in the estates of his parents, by the registration of their judgment after the death of Mrs. Bailey.

That instrument is not contained in the record, but were it a deed absolute in its terms, conveying to his mother all his interest in his father’s estate, it would not alter the rights of the parties; for under the line of decisions in this state, some of which are above cited, it must be held that the possession of Mrs. Bailey for nearly ten years, under claim adverse to W. D. Bailey, coupled with similar claim and possession by the other heirs from the time of her death, is as effective as notice to the appellants as though that instrument had been duly registered.

An instrument which the law permits to be registered is declared to be, if unregistered, void as to creditors and subsequent Iona, fide purchasers without notice. But can he that fails to make inquiry as to the extent of the right of a person in possession of land which he desires to buy, or upon which he seeks to attach a lien, be without notice ? This court has said not, and this rule is now too firmly fixed in this state to be changed, were there a desire to do so. Such an instrument, in so far as the estate of Mrs.

Bailey is concerned, could have no effect other than as evidence of the advancement made by the mother to the son; simply a receipt, conveying no title whatever ; for until the mother’s death the son could have no title to any part of her estate. An instrument having no other effect would not be subject to the registration laws. There being no error in the judgment, it is affirmed. Affirmed. Associate Justice Bonner did not sit in this case.