Reports of cases argued and decided in the Supreme Court of the State of Texas, during the Galveston session, 1867, with an appendix containing the cases of the Galveston session, 1861, etc. Volume 29. Page: 17
ix, 626 p. ; 22 cm.View a full description of this book.
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1867.] ELLINGTON V. ELLINGTON. 6
except a mare. The contract thus makes community
property of all but (as it resulted) the slaves. But there
is no settlement to extend beyond the lives of the spouses.
The pleadings admitting that the husband died without
issue, the decree was precisely in accordance with our
statutes governing marital rights and descents and distribution.
Hart. Dig. arts. 595, 854, 241S, 2422; Philleo v.
Holliday, 24 Tex. 44; Carroll v. Carroll, 20 Tex. 731, 744;
Story v. Marshall, 24 Tex. 308; Babb v. Carroll, 21 Tex.
77; Alexander v. Kenneday, 19 Tex. 491; Pas. Dig. arts.
3419, 3422, 4638, 4642, notes 783, 787, 1045, 1049.
Really, the only error was in not decreeing to the widow
one-third life estate in the moiety of the slaves decreed
to the parents of the deceased, in accordance with, the
principle in Story v. Marshall. But of this she has not
complained, and now only asks an affirmance of the
judgment.
DONLEY, J. Art. 1390, 0. & WV. Digest, provides, that
every matrimonial agreement must be made by an act
before a notary public and two witnesses. Pas. Dig. art.
4633, note 1041. In the alleged marriage contract in this
cause there are no witnesses; this is not in conformity
with the statute, and the appellee cannot be affected
thereby. This writing was properly disregarded by the
court. It is assigned that "the court erred in not continuing
said cause." The record does not show any application
[6J to continue. The decree of partition appears
to have been made in conformity with law. There is no
statement of facts and no error apparent upon the record.
The judgment is
Affirmed'.
VOL. XXIX-2 17
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas, during the Galveston session, 1867, with an appendix containing the cases of the Galveston session, 1861, etc. Volume 29., book, 1882; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28544/m1/15/: accessed May 3, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .