Hemphill, Ch. J.
I will consider the prominent points of this controversy, without regard to the order of assignments of error, by either plaintiff or defendants. Both parties—that is the plaintiff and two of the defendants—have appealed; but the plaintiff alone has given bond, and contends that the defendants should not be heard on their assignments, except so far as they may conflict with those filed by the plaintiff. This seems plausible, and in practice would he worthy of observance; but the effect of previous decisions of this Court, especially in the case of Caperton v. Wanslow, 18 Texas, is, that where one party sues out a writ of error or perfects an appeal, the other may assign errors and incorporate them in the record brought up by the plaintiff. This rule relieved the defendants, or appellees, from the necessity of giving bond; and their failure to do so was the result, doubtless, of the effect attributed by them to the decision.
The first question I shall examine is, whether the defendant Susan Carroll, the wife of the deceased Nathaniel H. Carroll, was entitled to a community share of the property left by him at his death. If she were in fact his wife, she was invested by law with the one-half of the clear gains made during the marriage. The proof is clear and abundant, that the parties, in the year 1837, intermarried in Jasper county, with all the formalities and ceremonies prescribed by the statute; and that they subsequently -lived together as man and wife, and as such were recognized by the community in which they lived, until the death of the husband Nathaniel, in 1853.
But it is said that the defendant Susan was not the lawful wife of the deceased, for the reason that at the time of their marriage, her former husband, Jabez Saunders, was still alive. A sufficient answer to this objection is, that she and her former husband separated in the year 1829, and there is no evidence in the record, of his existence since that date. She did not enter upon the second marriage, until eight years after the separation; and as the presumption of law is in favor of innocence, it would, after so great a lapse of time, be inferred that her husband was dead, and that there was no legal disability against the second marriage. Under the Act of 1836 for punishing crimes and misdemeanors, in force at the time of this marriage, the defendant could not have been convicted of bigamy, under the exemption extending to husband and wife ignorant that one or the other was living within five years previous to the second marriage ; and certainly a more rigorous construction would not be [741]*741given to the law, where the question is merely one of property, than would be where the act was stigmatized as criminal.
A question similar to the one arising in this cause, was considered at some length in Yates v. Houston, 3 Tex. R. 433; and it was held in effect, that where there was no evidence of the existence of the first wife, for four years prior to the second marriage, the presumption was that she was dead, and that the second marriage, or supposed second marriage, in that case, was lawful, and conferred on the wife a community right in property ; that the presumption in favor of the continuance of human life, should not outweigh the presumption of the innocence of cohabitation, and that this doctrine, in a case cited from 2 B. and Aid. 386, went to the extent of raising a presumption that a woman married within twelve months after her husband left the country, was innocent of bigamy; the presumption of innocence being held to preponderate over that of the continuance of the life of the husband. Eor further views, with reference to this point, we refer to the case cited from 3 Texas, there being such analogy between the facts, in the two causes, as to give to the doctrine there expressed, special force on the point under consideration.
The same preponderating effect of the presumption of innocence, over the presumption of the continuance of human life, was allowed in the case of Lockhart v. White and Others, 18 Tex. R. 102, where five years had intervened between the separation of husband and wife prior to the second marriage, and where the existence of the husband, within twelve months prior to that event, was not known.
Under these views and authorities, we may conclude that the prior marriage of the defendant Susan was no legal bar to her second marriage, and that by virtue thereof she became the lawful wife of the deceased.
But it is further objected, that the deceased Nathaniel had a wife living at the time of his marriage with the defendant Susan, and that this was within the knowledge of the defendant. But the proof is, that the deceased had also been separated from his wife for about eight years, and that his wife Elizabeth had married again in 1835, more than two years prior to the marriage between the defendant Susan and the deceased Nathaniel. There was no evidence that the first wife of the deceased had obtained a divorce prior to her second marriage. But the law in favor of innocence raises such presumption. And the defendant Susan, [742]*742if she knew of the existence of the first wife, might have acted on this presumption, in contracting the marriage relation with Mr. Carroll. The parties—that is the first wife and the deceased—■ appear to have lived, after the separation in 1829, at places remote from each other; and at the marriage of the defendant with the deceased in 1837, it appears not to have been known to their neighbors, that either of them had been previously married. In ■ Smith v. Smith, 1 Texas, such presumption was held available to the second wife. She, in that case, knew nothing of the existence of the first wife, until after the marriage of the latter with another husband, and as, under the principles of the laws of Spain, the cohabitation of the second wife with her putative husband was, prior to this .discovery of his previous marriage, lawful, it continued as such subsequently, from the fact that the first wife had married the second time; this latter marriage being presumed (there being no proof to the contrary) to have been after divorce and legal and valid. The laws of Spain were in force in Texas until 1840, and the defendant Susan has the right to claim all the aid from them, which, under the facts of this case, they may afford. She did not marry until two years subsequent to the second marriage of the first wife of the deceased. She and her husband lived as man and wife for sixteen years, up to the time of his decease. They were recognized as such by the community. No attempt was made to impeach or disturb their marriage relation, and we may safely conclude, after this lapse of time and under the circumstances, that the defendant was the lawful wife of the deceased, and that there existed no legal impediment to their marriage.
The first wife of the deceased has no claim on the community. If her marriage with Mr. Haley be valid (and this is the presumption) she cannot claim the benefit of two marriage partnerships existing at the same time. If, on the other hand, her marriage be unlawful, her condition would operate a forfeiture of community right with the deceased. (Wheat v. Owens, 15 Tex. R. 241.) She has also renounced all claim on the estate, and the right of the defendant Susan is not embarrassed by any pretensions of the previous wife of her deceased husband.
I have not considered the strong claim which the defendant Susan, independently of her rights as a lawful wife, might have urged to a community share of the property. She was his wife de facto. By her labors and toils she contributed to the accumulation of the estate.
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Hemphill, Ch. J.
I will consider the prominent points of this controversy, without regard to the order of assignments of error, by either plaintiff or defendants. Both parties—that is the plaintiff and two of the defendants—have appealed; but the plaintiff alone has given bond, and contends that the defendants should not be heard on their assignments, except so far as they may conflict with those filed by the plaintiff. This seems plausible, and in practice would he worthy of observance; but the effect of previous decisions of this Court, especially in the case of Caperton v. Wanslow, 18 Texas, is, that where one party sues out a writ of error or perfects an appeal, the other may assign errors and incorporate them in the record brought up by the plaintiff. This rule relieved the defendants, or appellees, from the necessity of giving bond; and their failure to do so was the result, doubtless, of the effect attributed by them to the decision.
The first question I shall examine is, whether the defendant Susan Carroll, the wife of the deceased Nathaniel H. Carroll, was entitled to a community share of the property left by him at his death. If she were in fact his wife, she was invested by law with the one-half of the clear gains made during the marriage. The proof is clear and abundant, that the parties, in the year 1837, intermarried in Jasper county, with all the formalities and ceremonies prescribed by the statute; and that they subsequently -lived together as man and wife, and as such were recognized by the community in which they lived, until the death of the husband Nathaniel, in 1853.
But it is said that the defendant Susan was not the lawful wife of the deceased, for the reason that at the time of their marriage, her former husband, Jabez Saunders, was still alive. A sufficient answer to this objection is, that she and her former husband separated in the year 1829, and there is no evidence in the record, of his existence since that date. She did not enter upon the second marriage, until eight years after the separation; and as the presumption of law is in favor of innocence, it would, after so great a lapse of time, be inferred that her husband was dead, and that there was no legal disability against the second marriage. Under the Act of 1836 for punishing crimes and misdemeanors, in force at the time of this marriage, the defendant could not have been convicted of bigamy, under the exemption extending to husband and wife ignorant that one or the other was living within five years previous to the second marriage ; and certainly a more rigorous construction would not be [741]*741given to the law, where the question is merely one of property, than would be where the act was stigmatized as criminal.
A question similar to the one arising in this cause, was considered at some length in Yates v. Houston, 3 Tex. R. 433; and it was held in effect, that where there was no evidence of the existence of the first wife, for four years prior to the second marriage, the presumption was that she was dead, and that the second marriage, or supposed second marriage, in that case, was lawful, and conferred on the wife a community right in property ; that the presumption in favor of the continuance of human life, should not outweigh the presumption of the innocence of cohabitation, and that this doctrine, in a case cited from 2 B. and Aid. 386, went to the extent of raising a presumption that a woman married within twelve months after her husband left the country, was innocent of bigamy; the presumption of innocence being held to preponderate over that of the continuance of the life of the husband. Eor further views, with reference to this point, we refer to the case cited from 3 Texas, there being such analogy between the facts, in the two causes, as to give to the doctrine there expressed, special force on the point under consideration.
The same preponderating effect of the presumption of innocence, over the presumption of the continuance of human life, was allowed in the case of Lockhart v. White and Others, 18 Tex. R. 102, where five years had intervened between the separation of husband and wife prior to the second marriage, and where the existence of the husband, within twelve months prior to that event, was not known.
Under these views and authorities, we may conclude that the prior marriage of the defendant Susan was no legal bar to her second marriage, and that by virtue thereof she became the lawful wife of the deceased.
But it is further objected, that the deceased Nathaniel had a wife living at the time of his marriage with the defendant Susan, and that this was within the knowledge of the defendant. But the proof is, that the deceased had also been separated from his wife for about eight years, and that his wife Elizabeth had married again in 1835, more than two years prior to the marriage between the defendant Susan and the deceased Nathaniel. There was no evidence that the first wife of the deceased had obtained a divorce prior to her second marriage. But the law in favor of innocence raises such presumption. And the defendant Susan, [742]*742if she knew of the existence of the first wife, might have acted on this presumption, in contracting the marriage relation with Mr. Carroll. The parties—that is the first wife and the deceased—■ appear to have lived, after the separation in 1829, at places remote from each other; and at the marriage of the defendant with the deceased in 1837, it appears not to have been known to their neighbors, that either of them had been previously married. In ■ Smith v. Smith, 1 Texas, such presumption was held available to the second wife. She, in that case, knew nothing of the existence of the first wife, until after the marriage of the latter with another husband, and as, under the principles of the laws of Spain, the cohabitation of the second wife with her putative husband was, prior to this .discovery of his previous marriage, lawful, it continued as such subsequently, from the fact that the first wife had married the second time; this latter marriage being presumed (there being no proof to the contrary) to have been after divorce and legal and valid. The laws of Spain were in force in Texas until 1840, and the defendant Susan has the right to claim all the aid from them, which, under the facts of this case, they may afford. She did not marry until two years subsequent to the second marriage of the first wife of the deceased. She and her husband lived as man and wife for sixteen years, up to the time of his decease. They were recognized as such by the community. No attempt was made to impeach or disturb their marriage relation, and we may safely conclude, after this lapse of time and under the circumstances, that the defendant was the lawful wife of the deceased, and that there existed no legal impediment to their marriage.
The first wife of the deceased has no claim on the community. If her marriage with Mr. Haley be valid (and this is the presumption) she cannot claim the benefit of two marriage partnerships existing at the same time. If, on the other hand, her marriage be unlawful, her condition would operate a forfeiture of community right with the deceased. (Wheat v. Owens, 15 Tex. R. 241.) She has also renounced all claim on the estate, and the right of the defendant Susan is not embarrassed by any pretensions of the previous wife of her deceased husband.
I have not considered the strong claim which the defendant Susan, independently of her rights as a lawful wife, might have urged to a community share of the property. She was his wife de facto. By her labors and toils she contributed to the accumulation of the estate. At the time of their marriage they were [743]*743in a state of indigence; the property not amounting to more than one hundred and fifty dollars. Their gains were the result of their joint industry, thrift and economy, and she is reasonably entitled to a share of the proceeds.
These considerations, though just and potent, need not be invoked by the defendant, as she does not require their aid; being, under the evidence, entitled to claim her community interest, as the lawful wife of the deceased.
The next question is, whether she, being thus entitled, has forfeited her rights, being estopped (as decreed by the Court below) by the inventory ? “ she having elected (in the language of the decree) to take according to the terms of the same and under the terms of the will.”
Before considering the effect of the inventory, upon the rights of the defendant, we will examine the terms of the will, to ascertain whether it was the intention of the testator that the defendant Susan should be put to the election of either insisting upon her community share, or of taking the bequest under the will. And it may be observed, that the right of the wife, to one-half of the property acquired during marriage, is equivalent to the right of the husband, to the other half. The difference is, that during the life of the husband, her right is passive, his is active and gives him the control and disposition of the property, without power, however, to act in fraud of the rights of the wife. On the death of the husband, she acquired the active, as she had before the passive dominion over her share of the acquisitions. Is there anything in the language of the will, which denotes an intention to bequeath, not only the property of the testator, but also that of the wife ? The terms are, “ I devise all my real and personal estate,” “It is my wish that all the real and personal estate, which may be belonging to me at the time of my death, be the same lands,” &e.; and, “ As soon as all my property, as aforesaid, is known and the same can be made available and partitioned, I order that the same shall be divided among my wife and children, each to receive share and share alike of my property as aforesaid.”
What is the meaning of this language ? Evidently that the testator is devising his own property, and not that of his wife or others who might have common interests with him in some of his lands or other estate. We derive our system of community rights from the laws of Spain; and had this will been framed under that Code, it could not have been pretended that [744]*744the widow was put to the election of renouncing either the community or the bequest. The power of the husband to dispose of the common property, during his life, did not authorize him to bequeath that portion of it which was not his own. Hence a legacy or bequest to her, in his will, was to be received by her exclusive of, and in addition to, her gananciales. (16th Law of Toro, L. 8, Tit. 4, lib. 10, Nov. Recop.; Schmidt’s Civil Law, p. 14; White’s Recop. p. 63.)
The estate of the widow, in dower at Common Law, is somewhat analogous to that of the wife, under our system, in the community gains; and the rule is well established, that the widow cannot be excluded from her dower, unless the intention to exclude her appear by express words or manifest implication from the terms of the will. This rule has been the subject of frequent discussion and decision, and the authorities on the subject are collected and reviewed in numerous cases. Among these are Hall v. Hall, 2 McCord’s Chan. R. 269; 8 Paige, 323; Adsit v. Adsit, 2 Johns. Chan. 448; Wake v. Wake, 1 Vesey, Jr. Sumers. Ed. 335; 2 Story, Eq. Juris. §1075 to 1123; Bouvier’s Dic. Election; Meigs’s Tenn. R. 378; 3 Bro. C. C. 347.
The cases of election are where the wife claims something under the will, which will disappoint the will. But will the acceptance by her, of the bequest, frustrate the intention of the testator ? Every bequest imports a bounty, and is not, unconnected with other circumstances, to be taken as a satisfaction of a pre-existing incumbrance. A bequest to the wife is a voluntary gift, and does not ordinarily affect her legal right. (2 J. C. R. 452.)
We are of opinion that the terms of the will do not manifest an intention to exclude the widow from her community rights, or put her to an election between that and the bequest under the will.
Nor is she precluded by the fact that the inventory represents the property as belonging to the estate of the deceased. From the face of the inventory we cannot infer upon what view the executors acted, in representing the great bulk of the property as belonging to the estate of the deceased. It seems, however, that they had some notion that there were such rights as separate and common property of the partners, as they represent two of the negroes to be the separate property of the deceased, [745]*745and the other two to belong separately to the wife, and also that there were one wagon and one yoke of steers common property.
Now, from the evidence in this cause, if there be any portion the separate property of the deceased, it is the wagon and yoke of oxen; as it seems that he had a wagon, a yoke of steers and a small horse at the time of his marriage. But, by the statute, the inventory is not conclusive as to whether the property was separate or common, as specified. (Hart. Dig. Art. 1151.) Nor is she concluded, on general principles, until the settlement of the estate, and she receive her share, to the exclusion of her legal rights on distribution. (Hall v. Hall, 2 McCord, Chan. R. 280.) In Wake v. Wake, 1 Vesey, 335, it was held that the receipt, by the widow, of a legacy and annuity, for three years, did not prevent her from the right of electing her dower, as she was presumed not to act on such full knowledge as would bind her.
The statute directs executors, &c., to specify in the inventories whether the property be separate or common, but this is frequently omitted; and if it does not bind an ordinary executor, for the more reason should it be held not conclusive on the widow, acting as executrix, who may well be presumed not to act on full knowledge.
We are of opinion that there was error in the decree of the Court below, excluding the widow from her community share in the estate.
The next question is as to the persons who were the objects of the testator’s bounty, under his will. Who' are meant by the terms “my wife and children?” Unquestionably, his wife Susan (whom he afterwards names as his executrix,) was intended by the designation “ my wife.” But who are the children ? It seems clear that he intended his own children. The words my wife and children convey exactly the same idea to the mind, as if the language was my wife and my children, and not the meaning of the words my wife and her children. We are of opinion that Elias Carroll, who was not a child of the deceased, was not embraced in the will, and there was error in regarding him as one of the devisees of the estate.
We are of opinion that the plaintiff Thomas was included under the terms “ children,” and that he is entitled to a share of the property of the deceased; and that all the children of the defendant, Susan Carroll, had by the deceased, whether born before or after their marriage, and who were alive at his death, [746]*746are included and are devisees under the will. It might he questioned whether the term “ children” would generally embrace illegitimate as well as legitimate issue. But the point is not material in this case. The issue of the defendant and the deceased, begotten before, were legitimated by the subsequent marriage of the parents. (Hart. Dig. Art. 2447, 2451.) And if this marriage were invalid, and the connection adulterous, as contended for by the appellant, the rights of the issue would not be affected; they by another provision being legitimate notwithstanding the nullity of the marriage. The terms of the Acts of 1840 and 1848, above cited, are that the issue in marriage, deemed null in law, shall nevertheless be legitimate. These provisions are found in statutes regulating the descent and distribution of property, and apply to all marriages, whether celebrated before or after the passage of the law or laws, provided the parent died after their passage. The right of the issue, to the property, does not commence until after the death of the ancestor, and must be determined by the laws then in force. The Act of 1848 fixes legitimacy, and its rights, upon all the children of the deceased, whether the marriage be or be not null and void. Such is the construction elsewhere, on similar provisions. (3 Henning & Mumford, 225; 5 Call, 439; 2 Grattan, 203; Lincecum v. Lincecum, 3 Missouri.)
We come now to consider the right of the defendant Ham, to the property held by him under Sheriff’s sale. The evidence on this branch of the cause is obscure. The proceedings in the cause in which execution was issued, were not in evidence. The judgment alone was offered, and this is not, nor is the execution, transcribed in the record. From the recitals in the Sheriff’s deed, it would seem that the judgment was against the executors, and that it directed the sale of the lots in question. But, without further evidence, this sale must be pronounced void.
As a general rule, debts against estates can be enforced only by process from the County Courts. There is an exception, under facts presented in this ease ; the testator directing that no other action should be had in the County Court, except the probate and registration of the will and return of an inventory. (Hart. Dig. Art. 1219.) This article is too long to be transcribed. It prescribes a mode of proceeding, which must he pursued in such cases, and which was not followed in the recovery of judgment against the executors. There is no evidence of previous citation to the devisees, of their giving or failure to [747]*747give bond, or, in fact, that there was any observance of the requisites of the statute. (Hogue v. Sims, 9 Tex. R. 546.) If the plaintiff in execution holds a mortgage on these lots, even then, in ordinary cases, he should apply for process from the County Court to enforce satisfaction. The sale must, under the evidence, be pronounced void, and that the estate has not been divested of title. The fact that Mr. Ham returned the slave Dick to Susan Carroll, the executrix, will relieve him from further responsibility in relation to said slaves.
The judgment of the District Court is reversed, and the cause is remanded to that Court, with directions to enter a decree establishing the right of the defendant Susan Carroll to a community share of said estate, and also her right and that of the other devisees, to a distributive share of the estate of the deceased according to the terms of the will and the directions of this Opinion, and that such further action be taken as may be required for the adjustment and settlement of the estate and the division of the same.
Beversed and reformed.