Pegues v. Haden , 76 Tex. 94 ( 1890 )

COLLARD, Judge.

Appellants’ first assignment of error is as follows:

“ The agreement among the heirs to divide the estate into four parts and to distribute it among the original heirs and their descendants, and the part execution of such agreement, was binding upon all such heirs, and the court erred in not so holding.”

The court below came to the conclusion that the distribution of the estate of Eliza Alston was not made under the verbal agreement referred to in the assignment of error, and we concur in that conclusion. After the “general verbal agreement,” as it is called, was made, there was a written agreement among the parties to divide Mrs. Alston’s community Ralf of the cattle among the grandchildren and plaintiff under the statutes of inheritance; and the statement of facts shows that “defendants read in evidence a written agreement, of date September 24, 1879 (seven days subsequent to the agreement to divide the cattle), wherein they agree to a division of the community estate of Mrs. Alston under the laws of inheritance.” It is true that the division of the cattle and the mules, as shown by the writing of September 24, 1879—all the partition that was ever made—was upon the basis of one-fourth to each set of heirs, or grandchildren, and one-fourth to Mrs. Haden. This was doubtless owing to the construction given by the parties $t the time of the statute regulating the descent of Mrs. Alston’s community estate. The division that was made was adopted by the parties by a written instrument to that -effect. It is evident that the written instruments made subsequent to the parol agreement were made in lieu of it; that it was merged into the writings. 2 Whart. Ev., sec. 1014; 1 Greenl. Ev., sec. 275; Hunt v. White, 24 Texas, 643.

The division that was actually made of the personal property was held by the lower court to be binding upon Mrs. Haden, and there is no controversy upon that subject. The parties making the division supposed they were complying with the contract in allowing Mrs. Haden only oneiourth of the property. The law was generally so construed and acted on until the decision in the case of Burgess v. Hargrove, 64 Texas, 110, in 1885, when the Supreme Court for the first time construed the statute. Pasch. Dig., art. 4642. By that decision the surviving child or children was made to inherit all a deceased parent’s half of the community estate, to the exclusion of grandchildren.

The division made shows that the. parties construed the stipulation in their contracts, that Mrs. Haden was to take under the law of descent, to mean that she was to take one-fourth and each set of grandchildren one-fourth of Mrs. Alston’s community estate. They supposed they were making such an agreement. It is also true, however, that it was not understood by the parties that Mrs. Haden was to surrender any part of her inheritance to the grandchildren; she was to take according to law. Hpon the supposition that the grandchildren were entitled to share with her the estate under the law, an agreement was made to divide the -estate according to law. The fact that the parties misconstrued the law and the terms of their contract would not bind Mrs. Haden to that construction, no consideration having been paid to her for such renunciation. If the parol contract had not been merged into the written agreement it would not be binding upon Mrs. Haden, because it wag without consideration. It would have been nothing more than an agreement to divide her own property with others without consideration, upon the erroneous and mistaken assumption that such other persons were entitled to and owned an interest in it. Such an agreement can not be enforced. Davis v. Agnew, 67 Texas, 213.

When a right is doubtful, is controverted, or where the object is to avoid or settle litigation, a compromise duly executed will not be set aside by the courts, if the parties act in good faith and there is no fraud or misrepresentation. Oamoron v. Thurmond, 56 Texas, 33-35.

In this case there was nothing to compromise, and no compromise was made; nor does it appear that there was any controversy between the-parties. It simply appears that in the partition made Mrs. Haden by a misconception of the law allowed the grandchildren three-fourths of her mother's community, when in fact under the law they were not entitled to any of it. The written contract between them stipulating for her full legal inheritance, the court below at least went as far in favor of the grandchildren as the law would permit in sustaining the partition, made.

Appellants claim that Mrs. Haden is estopped. We see nothing in the-nature of estoppel in the case. The reasoning of appellants would be, that because at one time Mrs. Haden donated to them three-fourths of her inheritance of personal property, she must now donate them three-fourths of the land. She is not bound to do so by contract or estoppel,

Appellants claim that in 1879, when descent of Mrs. Alston’s community estate was cast, Mrs. Haden could only take one-fourth under the law. This point has been twice decided by the Supreme Court adversely to appellants. Burgess v. Hargrove, 64 Texas, 110; Cartwright v. Moore, 66 Texas, 55; Act of 1848, Pasch. Dig., art. 4642; Rev. Stats., art, 1653. We see no reason why those decisions should be overruled. The statute was amended in 1887 by act of the Legislature so as to allow descendants of children to inherit the shares of their deceased parents. Hen. Laws 1887, p. 76.

Finding no error in the judgment of the court below, we conclude it; ought to be affirmed.

Affirmed.

Adopted January 20, 1890.