M. L. Clark et al. v. W. W. Thayer et al., 98 Tex. 142

GAINES, Chief Justice. This is a reversed and remanded case. In order to give us jurisdiction the plaintiffs in error stated in their petition for the writ of error that the judgment of the Court of Civil Appeals practically settled the case. Being of the opinion that the decision of that court did practically settle the title of the parties to the lands in controversy, provided the plaintiffs in error could adduce no better evidence, we granted the writ.

After considering the evidence •we are of the opinion that the Court of Civil Appeals reached the correct óonelusion—namely, that if the presumption obtained that the lands in controversy were the community property of the first marriage, that presumption was overthrown by the evidence which was adduced by defendants in error.

Whether when, as was shown in this case, at the time the property was acquired the husband and wife resided in another State where the community law does not exist, it should be held that the presumption that the acquisition is common property should apply, is a question not decided by the Court of Civil Appeals, and we do not pass upon it. Its determination is not necessary to the decision of this case.

Since we find no error in the judgment of the Court of Civil Appeals, it becomes our duty to affirm that judgment in so far as it. reverses the judgment of the trial court and to here render judgment to the effect that the lands in controversy were the separate property of W. W. Thayer, Sr., in his lifetime and at the time of his death, and remanding the case for the partition among the parties upon that basis. It is accordingly so ordered.