
    BUSBY & SCROGGINS v. G. W. DAVIS et al.
    SUPREME COURT,
    AUSTIN TERM, 1882.
    
      Survivor of. Community — Insufficient Inventory. — Where an inventory filed by the wife under P. D., arts. 4648, 4652, does not purport to be an inventory and appraisement of allgthe community property of herself and deceased husband, but simply purports to be an inventory of the property belonging to the estate of her husband, it is insufficient, as such an instrument would convey no notice that the wife was seeking to qualify herself to dispose of the property inventoried as community property of herself and deceased husband.
   Gould, C. J.

Opinion by The judgment in this case must have been rendered on the ground that the land in controversy was the community property of J. W. Busby and his wife Mary, and that the conveyance by Mary Busby to D. G. Ransom, made after her husband’s death, was valid, because previous to making said conveyance she had filed in the county court an inventory and appraisement of all the community property of herself and her deceased husband, and had otherwise so fulfilled the requirements of the statute that shejwas authorized to dispose of the community estate. (P. D., arts. 4648, 4652.)

The record shows a petition by her, as surviving wife of J. W. Busby, for the appointment of Nicholas Sims, John Guye and Wright Edmundson as appraisers “of the property of said estate,” the petition referring expressly to the act of August 26, 1856, containing the articles above cited. This petition is dated August 30, 1858. No order of court appointing appraisers is shown, but on October 13 N. P. Sims and Wright Edmundson, styling themselves •commissioners appointed by the county, court, and professing to act in compliance with the “ above appointment,” subscribed and swore to an instrument in which they say that they “ valued all the property rendered belonging to the estate of John W. Busby, deceased.” This document is subscribed by the appraisers alone, is sworn to by them only, as a correct inventory of the property belonging to the estate of John W. Busby, deceased, so far as the same had been pointed out to them, and is marked by the clerk of the county court filed October 13, 1858. No further action of Mrs. Busby is shown, nor does anything else appear affecting the question of Mrs. Busby’s authority to dispose of the community property.

The decisions of this court have been very liberal in supporting efforts by the survivor of the community to comply with the requirements of the act of August 26, 1856. (Dawson v. Holt, 44 Texas, 174; Cordin v. Cage, 44 Texas, 532; Jordan v. Smithurn, 51 Texas, 276; Green v. Griscom, 53 Texas, 432.) But, in our opinion, the inventory and appraisement in this case is more defective than any which has heretofore been held sufficient. Not only is-there an absence of any order whatever of the court or county judge, and of anything showing that the inventory was made or filed by Mrs. Busby, but the inventory does not purport to be an inventory and appraisement of all the community property of herself and her deceased husband, as required by the statute. It purports to be only an inventory of the property belonging to the estate of John W. Busby. The filing and record of such an instrument would convey no notice that Mrs. Busby was seeking to-qualify herself to dispose of the property inventoried as community property, of herself and her deceased husband. It may be that any one finding this instrument on record, and finding Mrs. Busby’s-petition also on file, wbuld be led to infer that the inventory and appraisement was designed to be of the community estate of Mrs. Busby and her deceased husband. The difficulty remains that the inventory and appraisement does not purport to be as the statute-requires, but does purport to be something essentially different. We think that the evidence failed to show that Mrs. Busby had qualified as survivor of the community under the statute of 1856.

As this conclusion is fatal to the judgment, and as the case is one which we think should properly be remanded for another trial, we purposely abstain from discussing the sufficiency of the evidence to establish that the land was the separate property of J. W. Busby.

It is perhaps proper to add that we see nothing in this case calling-on us to revise the action of the new court in granting a new-trial at a former term.

The jndment is reversed and the cause remanded.

Gould, C. J.  