
    KELLY v. KELLY.
    (No. 964-4791.)
    Commission of Appeals of Texas, Section A.
    May 25, 1927.
    Wills &wkey;>534 — Under devise of community property to wife, residue to be divided among named children, property remaining on wife’s death passed under will.
    Devise of community property to wife for use of family, residue to be divided among six named children on wife’s death, passed residue to such children under will to exclusion of claim of seventh child by inheritance from mother, where such child received portion of property by conveyance from mother under will’s direction.
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Suit by Craven Kelly and others against G. W. Kelly and others for partition, in which Craven Kelly filed an amended original petition against R. E. Kelly. Judgment for plaintiff was reversed by the Court of Civil Appeals and remanded (291 S. W. 631), and plaintiff brings error.
    Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed. j
    Hood & Shadle, .of Weatherford, for plaintiff in error.
    J. M. Richards, W. R. Hawkins, and Jim L. McCall, all of Weatherford, for defendant in error.
   BISHOP, J.

G. S. Kelly and Julia Kelly, ■husband and wife, had the following children: R. E. Kelly, R. L. Kelly, W. W. Kelly, J. H. Kelly, Craven Kelly, Julia Kelly, and George Kelly. Their community property included 281 acres ofTand. G. S. Kelly died October 8, Í906, leaving' the following will, which was probated on application of his wife, Julia Kelly:

“I, G. S. Kelly being of sound- mind and in-presence of these witnesses and knowing the uncertainty of life, take this method of advising how my personal and real estate shall be disposed of after my death, revoking all former wills and this is my last will and testament.
“First: All my just debts and funeral expenses shall be paid.
“Second: I give unto the hands of my beloved wife Julia Kelly my property both real and personal to fully control said property for the use of my family.
■“Third: I appoint my wife Julia Kelly to be my executrix of the (this) my last will and testament without bond.
“Fourth: I desire my wife Julia Kelly to execute when she sees proper, a deed of gift to R. E. Kelly as his part of my estate sixty-eight acres (68) acres of land known as the N. half of 137% acres survey as the S. M. King •survey in Parker County, Texas, said land was deeded to G. S. Kelly by S. M. King and recorded in Deeds book No. 57, page 327.
“Fifth: At the death of my wife, Julia Kelly I desire then that the property then remaining both personal and real be sold or divided equally between my six other children, viz.: R. L. Kelly, J. H. Kelly, W. W. Kelly, Craven Kelly, Julia B. Kelly and George Kelly.
“Sealed, signed in the presence of each other, this 2nd day of August, 1906.
“G. S. Kelly.
“Witnesses: J. R. Richards, C. D. Thomas.”

On October 29, 1907, Julia Kelly executed deed conveying to her son R. E. Kelly the 68 acres described in the will, same being a part of the community property belonging to her and G. S. Kelly .at the time of his dedth; She died in 1920 without having disposed of any of the balance of the community land owned by her and her husband consisting of 213 acres. Craven Kelly, having acquired the interest of R. E. Kelly, W. W. Kelly, J. H. Kelly, Julia Kelly, the daughter, and George Kelly, in this 213 acres of land, prosecutes this suit to recover same against R. E. Kelly, who is claiming a one-fourteenth undivided interest as heir of his mother, Julia Kelly.

Craven Kelly recovered judgment in the district court, but the Court of Civil Appeals reversed this judgment and remanded the cause. 291 S. W. 631.

This will disposes of the community estate of G. S. Kelly and Julia Kelly. It vests legal title to the community estate in the wife for the use and benefit of the family. It directs that she convey the 68 acres of the community estate to R. E. Kelly, and that the property remaining at the termination of the trust be divided equally between his other six children. The wife elected to accept under the will, and faithfully performed the trust. The wife and children tools under the will, and the children took no part of the community estate by inheritance from their mother.

R. 'E. Kelly owns no interest in the 213 acres, and we recommend that the judgment of the Court of Civil Appeals be reversed and that of the district court affirmed.

CURETON, C. J.

Judgment of the Court of Civil Appeals reversed, and judgment of the district court affirmed, as recommended by the Commission of Appeals. 
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