A will made in Texas, operating upon property there situated, must be interpreted by the law of that State. To that law, reference must be had to determine the capacity of the testator, the extent of his power of disposition, and the conditions upon which the power of alienation vested in the guardian of his children, appointed by the will, is to be exercised.
In the absence of proof to the contrary, the common law is presumed to exist in those States of the Union which were originally colonies of England, or were carved out of such colonies.
The same presumption prevails as to the existence of the common law in those States which have been established in territory acquired since the revolution, where such territory was not, at the time of its acquisition, occupied by an organized and civilized community; but where the population, upon the establishment of government, was formed by emigration from the original States.
Mo such presumption can prevail as to the States of Florida, Louisiana and Texas. In those States, at the time of their accession to the country, organized governments existed, the laws of which remained in force until they were abrogated by proper authority, and new laws were promulgated.
In the absence of proof as to the laws of Texas, the Courts of this State, in interpreting a will made in that State, will presume its laws to be in accordance with the laws of California.
D, a resident of Texas, and possessed of property situated in that State, makes a will, giving all his estate, real and personal, to his wife and children, in equal interest, one with the other, and investing his wife with the sole and entire control of the whole estate daring her life, for the benefit of herself and children, free from the control and guidance of the Courts of law in that or any other State, where she may happen to reside at the time of bis death, with full and complete power in her own name, and as guardian of his children, to sell and convey, or exchange, any portion or all of his estate, and to give title to the same, and to purchase with the proceeds such other property as she might deem best for her own interest, and that of his children, “ without the intervention or interposition of any Court whatever,” and appointing her Executrix of his will and guardian of his children ; Held, that, under the will, the wife has power to sell the entire property of the estate; and that, describing herself in a bill of sale, as “ Executrix;” etc., does not limit the estate sold to her interest as such Executrix; the designation being intended merely to identify herself as the individual mentioned in the will. The designation does not operate as a limitation upon her power.
The statute of this State, relative to guardians, and the disposition of the estate left to wards, only applies when there is no direction by will as to such disposition.
Field, C. J. delivered the opinion of the Court Cope, J. concurring.
In the year 1853, one Charles L. Dell, at that time a resident of Texas, died possessed of real and personal property situated in that State, and leaving a widow, Amanda, one of the present defendants, and two children, surviving him. By his last will, which was made in Texas, he gave all his estate, real and personal, to his wife and children, in equal interest one with the other, and invested his wife with the “ sole and entire control ” of the whole estate during her life, for the benefit of herself and children, free from the control and guidance of the Courts of law in that or any other State where she might reside at the time of his death, and with authority in her own name, and as guardian of the children, to sell or exchange the estate, or any part thereof, and to purchase with the proceeds such other property as she might deem best for her own interest and that of the children, without the interposition of any Court whatever, and appointed her executrix of his will and guardian of his children. The will was duly admitted to probate, and recorded in Harris county; but whether any letters testamentary or of guardianship were ever issued to the widow, does not appear. The complaint alleges that none such were ever issued, and that she never qualified, either as executrix or guardian, and was never authorized by the judgment or order of any Court in Texas to act in either capacity. The answer does not specifically meet these allegations, so far as the issuance of letters is concerned; but avers that all due and necessary proceedings were taken under the Constitution and laws of Texas to authorize her to act both as executrix and guardian, and to make valid sales of the property in that State or elsewhere.
In 1854, the widow of Dell intermarried with the defendant, Lewis B. Harris, and moved, with her husband, to Sacramento city, in this State, where she has ever since resided. In 1856, the plaintiff, Samuel Norris, entered into a contract with the defendants for an exchange of property, by which contract Norris conveyed to Mrs. Harris certain real estate situated in the county of Sacramento, and certain interests [250]in the bridge over the American river—the whole property being of the estimated value of $61,889, and paid to her in cash the sum of $9,120—and in consideration thereof, the defendants sold to him a number of slaves, identified and described by name and age; two hundred and fifty head of horses; seven thousand head of cattle, and other property, all being at the time in the State of Texas, and constituting part of the property which belonged to the estate of Dell, deceased.
Where a will appoints a guardian, there is no necessity for the issuance of any letters of guardianship to authorize the guardian to act. The guardian's authority comes directly from the will.
In this State there is no limitation upon the power of disposition by will.
An entire contract is indivisible—the whole must stand or fall together. But a contract, made at the same time, for different articles, at different'prices, is not an entire contract, unless the taking of the whole is essential from the character of the property, or is made so by the agreement of the parties, or unless it is of such a nature that a failure to obtain a part of the articles, would materially affect the objects of the contract, and thus have influenced the sale, had such a failure been anticipated.
A sale of nine slaves for a gross sum is an entire contract. There being no means afforded for determining the price of each one, the agreement is implied that the whole are to be taken, or none.
Where, in a bill of sale of all the cattle of a certain estate, estimated at seven thousand head, a total price being fixed, it was stipulated that the vendee, on arriving in Texas where the cattle were, might choose to take all the cattle of the estate without counting them, in which event he was to notify the agents of the vendors of his choice, and pay an additional $4,000; but if a count was had, and the cattle exceeded or fell short of the estimated number, the excess or deficiency should be paid for at the rate of eight dollars per head ; and no count was ever made, and no notification ever given by the vendee, that he took the cattle without a count; Held, that the vendor, on the facts, cannot recover the $4,000; that the only obligation of the vendee, in the first instance, is to receive the cattle and pay for any excess over the estimated number, if counted; that his liability for the $4,000 depended entirely on his choice to take the cattle without a count, and that this choice was a mere privilege, to be exercised or not, at his option.
The vendor, after waiting a reasonable time for the vendee to make his choice, he neglecting or refusing to make it, could fix his liability, by making the count himself.
The doctrine of election has no application here. That doctrine applies only to cases where the party, upon whom rests the performance, stands in the same position to both alternatives presented, and is bound to indicate his choice between them. Here, the vendee was bound to choose only in the event he desired to take the cattle without a count. If he did not so desire, he was not required to give notice to that effect. His obligation to pay for any excess was absolute, without any expression of choice; but his obligation to pay the $4,000 was conditional, dependent solely upon the indication of his desire to dispense with the count.
Where the doctrine of election is applicable, the right of election, upon failure of the party upon whom the performance rests, to indicate his choice, passes to the other side, as in this way only can the obligation become absolute and determinate.
Both instruments were executed simultaneously, and both recite a pecuniary consideration—that of Norris, a consideration of $70,000; that of Harris and wife, a consideration of $6,000 for the negroes, $9,000 for the horses, $56,000 for the cattle and other property—in all, $71,000. But the real consideration was, on the one side, the property conveyed and money paid by Norris; and on the other, the negroes, cattle and horses, and other property in Texas, transferred by the defendants. With his conveyance, Norris delivered to the defendants possession of the property in Sacramento, and they have ever since continued in possession of the same, with the exception of a small portion, which they have sold.
The bill of sale to Norris recites that the cattle were at the time running in the counties of Harris, Brazoria, Fort Bend and Galveston; and provides that upon the arrival of Norris, or his agent, in Texas, for the purpose of taking possession of the property, he might have the election of taking all the cattle belonging to the estate of Dell, without making a count; in which event, he was to notify the agents of the defendants in possession of the same of his intention to thus take them, and to pay an additional sum of $4,000; but that if he made a count of the cattle, and they exceeded seven thousand in number, he was to pay eight dollars per head for the excess; and if they fell short of that number, the defendants were to repay to him the same price per head for the deficiency. The bill of sale also provides that if the horses, on being counted, exceeded or fell short of the specified number—two hundred and fifty—the excess or deficiency should be paid for at the rate of thirty-six dollars per head. With the bill of sale, the defendants gave an order upon their agent in Texas to deliver possession of the property to Norris.
At the date of these respective instruments, three of the slaves had been sold, and it would appear that there was a deficiency in the designated number of horses and cattle. The evidence in relation to the [251]deficiency is not very precise or satisfactory. No count had been made by any of the witnesses, and their statements are only conjectural and speculative in their character, and materially differ from each other. The evidence leads to the conclusion that there was a deficiency, but leaves its extent a matter of uncertainty.
Soon after the execution of the bill of sale, Norris proceeded to Texas to take possession of the property, and whilst there, became impressed, as it would seem, with the conviction that the instrument did not pass a good title to him, and that the property was different, both in quantity and character, from the representations made by the defendants. He accordingly returned to California without taking possession, and soon after notified the defendants that he rescinded the contract, and tendered to them a retransfer of the property, and demanded a restitution of the property which he had conveyed to Mrs. Harris. As the defendants insisted upon the validity of the contract, he instituted the present suit to obtain such rescission and restitution, and an account of the rents and profits of the property, conveyed by him, while in the hands of the defendants.
In the complaint, various charges are made of fraudulent representations by the defendants as to the quantity, quality and value of the property sold by them, none of which are supported by the evidence, and they are abandoned by the plaintiff’s counsel. The evidence, produced by the plaintiff himself, frees the defendants from the imputation cast upon their conduct, and fully vindicates the good faith of their acts.
The other grounds upon which the plaintiff rests his right to relief, are the alleged want of power in the defendants to convey the property, and the alleged deficiency in the number of slaves, horses and cattle designated in the instrument of sale. Their determination will dispose of the merits of the plaintiff’s claim to a rescission of the contract. The validity of the counter claim asserted by the defendants, and the judgment rendered in their favor, will be subsequently considered.
The solution of the proposition involved in the first position of the plaintiff, must depend upon the construction given to the will of the testator, the necessity of letters of guardianship to invest Mrs. Harris with authority to act under the will, and the necessity of the direction of the Probate Court to give validity to the sale made.
The defendant, Mrs. Harris, styles herself in the bill of sale as [252]executrix, and designates the property as belonging to the estate of the deceased, but attaches her signature without any addition of the capacity in which she acts. The will must be interpreted according to the law of Texas, where it was made, and where the property upon which it operated was situated. To that law we must resort to determine the capacity of the testator, the extent of his power of disposition and the conditions upon which the power of alienation vested in the guardian was to be exercised. (Jarman on Wills, 1; 2 Greenl. on Ev. sec. 671.) In the present case there is no proof what the law of Texas is upon these subjects. One of the counsel of the defendants insists that, in the absence of such proof, the rule is to presume the existence of the common law and to be governed by its principles. There is no doubt that the common law is the basis of the laws of those States which were originally colonies of England, or carved out of such colonies. It was imported by the Colonists and established so far as it was applicable to their institutions and circumstances, and was claimed by the Congress of the United Colonies in 1774 as a branch of those “ indubitable rights and liberties to which the respective colonies ” were entitled. (Kent’s Com. 1 vol. 343.) In all the States thus having a common origin, formed from colonies which constituted a part of the same empire, and which recognized the common law as the source of their jurisprudence, it must be presumed that such common law exists—it has been so held in repeated instances—and it rests upon parties who assert a different rule to show that matter by proof. (See Inge v. Murphy, 10 Ala. N. S. 895.)
A similar presumption must prevail as to the existence of the common law in those States which have been established in territory acquired since the Revolution, where such territory was not at the time of its acquisition occupied by an organized and civilized community; where, in fact, the population of the new State upon the establishment of government was formed by emigration from the original States. As in British Colonies, established in uncultivated regions by emigration from the parent country, the subjects are considered as carrying with them the common law, so far as it is applicable to their new situation, so when American citizens emigrate into territory which is unoccupied by civilized man, and commence the formation of a new government, they are equally considered as carrying with them so much of the same common law, in its modified and improved condition under the influence of modern civilization and republican principles, as is suited to their new condition and wants.
[253]But no such presumption can apply to States in which a government already existed at the time of their accession to the country, as Florida, Louisiana and Texas. They had already laws of their own, which remained in force until by the proper authority they were abrogated and new laws were promulgated. With them there is no more presumption of the existence of the common law than of any other law. They were independent of the English law in their origin, and hence no presumption of the existence of the common law of England can be indulged. In countries conquered and ceded to England, the common law has no authority without positive enactment, and for the same reason, that they were not part of the mother country, but distinct dominions. (1 Blackstone, 107; Story on the Cons. 1 vol. 150.)
As Texas was an independent country at the time of its accession to the United States—having laws of its own, not being carved out of the ancient colonial provinces of England, like the original thirteen States, or formed by emigration into an uncultivated country from those States, but from a Mexican province by a successful revolution against the Republic of Mexico—no presumption can arise of the existence therein of the common law, which is the basis of the jurisprudence of the other States.
The question then recurs as to what is to be presumed as to the law of Texas, in the absence of any proof on the subject. We can perceive only one way in which the question can be answered, and that is to presume the law of that State to be in accordance with our own. We are called upon to determine the matter in controversy, and are not at liberty to follow our own arbitrary notions of justice. We cannot take judicial notice of the laws of Texas, and we must, therefore, as a matter of necessity, look to our own laws as furnishing the only rule of decision upon which we can act; and to meet the requirement that the case is to be disposed of according to the laws of Texas, the presumption is indulged that the laws of the two States are in accordance with each other. The authorities, with some exceptions, are to this effect. Thus, in Smoot et al. v. Baldwin, (1 Martin, N. S. 523) a question arose in the Supreme Court of Louisiana whether an instrument executed in Alabama was a mortage or a sale, and the Court said: “ The law of Alabama has not been proved, and, conformably to the uniform decisions of this Court, we must decide this case by the provisions of our own.” In Allen v. Watson, (2 Hill’s S. C. Rep. 319) the plaintiffs brought suit in South Carolina to recover a sum of money won by the [254]defendants at a faro table in Georgia. It was insisted that before the plaintiffs could recover, they must show playing at faro to be illegal by the law of Georgia; but the Court said; “ It is true, the legality or illegality of any transaction must depend on the law of the place where it transpires, but it is incumbent on those who would avail themselves of it to show what that law is. In this State (South Carolina) playing at faro is unlawful and punished by fine; and if we are obliged to determine that question, in utter ignorance of what the law of Georgia is, we must resolve it by our own rule, for the obvious reason that we have no other.”
In Monroe v. Douglass (1 Selden, 452) the Court of Appeals of New York, in referring to the laws of Scotland, which were supposed to apply to the controversy involved, but which were neither asserted or proved to be different from those of that State, used this language:' “It is a well settled rule, founded on reason and authority, that the lex fori, or, in other words, the laws of the country to whose Courts a party appeals for redress, furnish in all cases, prima facie, the rule of decision; and if either party wishes the benefit of a different rule or law, as, for instance, the lex domicilii, lex loci contractus, or lex loci rei sites, he must aver and prove it. The Courts of a country are presumed to be acquainted only with their own laws; those of other countries are to be averred and proved, like other facts of which Courts do not take judicial notice, and the mode of proving them, whether they be written or unwritten, has been long established.” (See, also, as bearing more or less directly on this and kindred questions, Arroyo v. Currell, 1 Mill. La. 541 ; Crozier v. Hodge, 3 Id. 357 ; Ex parte Lafonta, 2 Rob. 495; Smoot v. Russell, 1 Martin, N. S. 522 ; Campbell v. Miller, 3 Id. 149 ; Harris v. Alnutt, 12 La. 465 ; Greenwade v. Greenwade, 3 Dana, 75 ; Holmes v. Broughton, 10 Wend. 75 ; Abel v. Douglass, 4 Denio, 305 ; Thurston v. Percival, 1 Pick. 415 ; Crouch v. Hill, 15 Ill. 265 ; Titus v. Scantling, 4 Blackf. 90; Sheperd et al. v. Nabors, 6 Ala. N. S. 637 ; Ellis v. White, 25 Id. 540.)
Assuming, then, for the reasons we have stated, that the laws of Texas are similar to the laws of this State on the same subjects, we proceed to consider the questions raised by the plaintiff as to the power of Mrs. Harris under the will. It is clear to us that it was the intention of the testator to invest his wife, not merely with the entire control of the estate during her life, but with the absolute power of disposition, subject to two qualifications—one, that the cattle should not be sold in [255]two years unless eight dollars per head could be obtained for them; and the other, that certain real estate should not be sold until the lapse of twenty years. Subject to these limitations, all power and authority are given to her to control, exchange or sell the property, without the guidance or interposition of the Courts of Law. Particular desire is manifested by the testator that her power should not be the subject of interference or embarrassment by legal proceedings. Her control of the estate is to be without the guidance of the Courts, and the sale or exchange of the estate is to be without their interposition. Language more expressive of his confidence in the ability of his wife to manage the estate, and of his desire to invest her with power of disposition, independent of all direction or dictation by any tribunal, could hardly be used. To require her to obtain that direction, or to be subject to that interference, would defeat the express provisions of the will. Mrs. Harris is legatee, executrix and guardian. In one or the other, or all these capacities, she had by the terms of the will the power to execute the bill of sale to Norris. The bill purports to transfer the property, and not any particular interest she may have possessed in her own right or as executrix or guardian. It is true, she describes herself in the instrument as executrix, but this is only a designation of her person, intended to identify her as the individual mentioned in the will. •The designation does not operate as a limitation upon her power. If she possessed the power to dispose of the entire estate, she exercised that power when she executed the bill of sale. The transfer was valid, though the description was defective. The authority was vested in herself alone under the will, and could only be exercised by her in whatever way she was designated, or if no designation was affixed to her name. It is not the case of an agent or attorney exercising another’s authority, and therefore proceeding only in his name. It was the exercise of her own authority, possessed in her own right.
The position taken by the plaintiff, that it' was incompetent for the testator to provide for the sale by Mrs. Harris of the property of her children, without the direction of the Probate Court, is not tenable. The statute of this State in relation to guardians, and which we must presume to be in accordance with the laws of Texas, is only applicable, in our judgment, to cases where there is no direction by will as to the disposition of the estate left to. the wards. If such estate were given, subject to a right of sale or exchange in the guardian, and thereby to acquire property, for their benefit, of a different character, it is difficult [256]to perceive in what respect the policy or letter of the law would be contravened. The object of the law, when there has been a testamentary appointment of guardian, is, as we conceive, to preserve the property for the benefit of the wards, so as to effectuate and not defeat the intentions of the testator. This view is strengthened by the consideration that there is no limitation by the law of this State upon the power of disposition by will. The statute is only operative where there is no testamentary power.
Nor is it necessary, under our statute, that any letters of guardianship should issue to authorize the guardian to act. The order of appointment, when made by the Probate Court, constitutes the authority of the guardian, and the will, in case of testamentary appointment, that of guardians in other cases. The will in the present case was admitted to probate; and, therefore, to its provisions Mrs. Harris must look as her source of power.
It follows, from the result to which we have arrived, that the bill of sale passed a good and sufficient title in the property to Norris; and this brings us to the consideration of the second ground upon which a rescission of the contract is sought by him—the alleged deficiency in the number of slaves, horses and cattle sold.
As we have already stated, three of the slaves designated in the instrument of transfer to Norris had been at the time sold, and it appears from the evidence that a deficiency existed in the number of horses and cattle, and hence, it is contended that the plaintiff was under no obligation to accept those which remained, on the ground that the contract was entire for the whole of the personal property. It is undoubtedly true that an entire contract is indivisible—that the whole must stand or fall together. But a contract, made at the same time, of different articles, at different prices, is not an entire contract, unless the taking of the whole is essential from the character of the property, or is made so by the agreement of the parties, or unless it is of such a nature that a failure to obtain a part of the articles would materially affect the objects of the contract, and thus have influenced the sale, had such failure been anticipated. In the present case, the contract includes three items—the slaves, the horses and the cattle. As to the slaves, the contract is clearly entire. A gross sum is'fixed for the whole number, and no means for determining the price for each one is afforded, and hence the agreement is implied that the whole are to be taken or none. (Story on Contracts, sec. 23 ; Miner v. Bradley, 22 Pick. 459.) [257]As to the horses and cattle, a possible deficiency in their number was in the contemplation of the parties at the time, and hence provision for compensation per head was provided to meet such deficiency. The failure, then, to deliver the whole number of horses and cattle did not invalidate the contract as to them, but the sale of the three slaves, and the consequent inability to deliver the whole number, would have that operation as to the item of slaves, were it not for the subsequent and independent stipulation of the parties, by which provision was made for the sales which might take place before the news of the transfer to Norris could be received by the agent of the defendants. That stipulation obviates the objection on that ground. (Mayfield v. Wadsky, 3 Barn. & Cress. 361; S. C. 5 Dowl. & Ryl. 228 ; Wood v. Benson, 2 Cromp. & Jerv. 94.)
The views to which we have arrived as to the power of disposition of the defendant Mrs. Harris, under the will, and the alleged deficiency in the property designated in the instrument of sale, dispose of the claim of the plaintiff to a recission of the contract.
It only remains to consider the validity of the counter claim upon which the defendants recovered judgment. The determination of this point depends upon the construction of that clause in the bill of sale which provides that if Norris, on his arrival in Texas, should choose to take all the cattle without a count, he should notify the agent of the defendants in possession of his intention to do so, and in consideration thereof, pay the further sum of $4,000 ; but if a count was had, and the cattle exceeded or fell short of the estimated number of 7,000, the excess or deficiency should be paid for at the rate of eight dollars per head. No count was ever made, and no notification was ever given by Norris that he chose to take the cattle without a count; but on the trial, which was brought on in the absence of plaintiff’s counsel, judgment was taken for $4,000, as though there had been such notification, after deducting from that sum the amount received upon the sale of the three negroes. In this respect the judgment is clearly erroneous. The sale is of all the horses and cattle belonging to the estate of Dell, estimated at a specified number, and the delivery to the purchaser was, of course, to be made by the defendants or their agents. The plaintiff was bound to receive them, and to pay for the excess over the estimated number, if, upon a count, any should be found to exist. This was the sole obligation resting upon him in the first instance, and the only one he agreed to assume, except upon condition that he should elect to take the cattle [258]without any count. This condition was a mere privilege, which he could claim or not, at his own mere volition, and for which, if claimed, he was to pay the sum of $4,000. He could thus have avoided one liability by assuming another; but as he did not think proper to change the extent or nature of his obligation, he cannot be charged as if the reverse were the case. The defendants could have made the count, and thus have fixed the liability of the plaintiff on his refusing or neglecting to take the cattle without such count. The defendants were not bound to wait beyond a reasonable time for his determination.
The doctrine of election, upon which the defendants attempt to sustain the counter claim, has no application to the contract in this case, That doctrine applies only to cases where the party, upon whom rests the performance, stands in the same position to both alternatives presented, and is bound to indicate his choice between them. Here there was no obligation resting upon Norris to choose between two things; he was not bound to indicate any choice, only in the event of desiring to take the cattle without a count. If he did not desire to do so, he was not required to give notice to that effect. The obligation to pay for the excess over the estimated number, if there were any, was absolute, without any expression of choice; but the obligation to pay the $ 4,000 was a conditional one, dependent solely upon the indication of his desire to dispense with the count.
In cases where the doctrine is applicable, the right of election, upon failure of the party upon whom the performance rests to indicate his choice, passes to the other side, as in this way only can the obligation become absolute and determinate. Thus, if a debtor, by a given day, is to pay money or furnish goods, it is evident that upon a failure to indicate which of the two he will do, the obligation would be indefinite and uncertain. But this is quite different from a contract to do a certain thing absolutely by a given day, with the privilege of discharging the obligation in some other way previously. In such case, if the privilege be not exercised, the obligation is not left in uncertainty, but is definite and absolute. So, in the present case, the failure or refusal of Norris to indicate any desire to take the cattle without a count, did not leave the character of his obligation in any respect indefinite and uncertain.
It follows, from the views we have expressed, that the judgment must be reversed and the bill dismissed, and the parties left to determine, by actions at law, their respective claims for any excess or defi[259]ciency in the number of horses and cattle designated in the instrument of sale. And it is so ordered.
Baldwin, J. having been counsel for the respondent in the Court below, did not sit in the case.
AI Brief
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Holding. The court held that the widow possessed the authority under the will to sell the estate property without court intervention, and that the contract for the sale of property was valid. However, the court reversed the judgment for the defendants' counter-claim, finding that the plaintiff was not obligated to pay the $4,000 fee because he never exercised his optional right to take the cattle without a count.
Issues
Whether the widow had the authority under the will to sell estate property without probate court intervention.
Whether the contract for the sale of multiple types of property was an entire or divisible contract.
Whether the plaintiff was liable for a $4,000 payment under an optional provision in the contract that he never exercised.
Disposition. reversed
Quotations verified verbatim against the opinion
“It is clear to us that it was the intention of the testator to invest his wife, not merely with the entire control of the estate during her life, but with the absolute power of disposition”
“The bill of sale passed a good and sufficient title in the property to Norris”