This is a suit for a partition of an estate, there being, at the time the suit was brought, no administration, and it was alleged that there was no necessity for one.
John B. and Elizabeth Reed moved to Texas in 1850, then being man and wife.
John B. Reed died on the 8th of November, 1871. He left, surviving him his widow, Elizabeth, and ten children, and one set of grandchildren, issue of a deceased son. He left, as community estate between himself and his wife Elizabeth, one thousand one hundred and thirty-seven acres of land, and some personal estate, consisting of horses, cattle, hogs,' money, &c.
On the 9th of June, 1872, the appellants began this suit, on the regular District Court docket, alleging that they were heirs of John B. Reed by a former wife; that he left a large real and personal estate, which was community between himself and his wife Elizabeth; that the widow had taken exclusive possession of the property, without administration regularly commenced, or by compliance with the community law, and was claiming the estate exclusively for herself and her six children, denying appellants any claim therein. They pray for partition and distribution of the estate according to law, and make the widow and her children defendants to the suit.
The defendants answered, denying that plaintiffs had any interest in the estate of John B. Reed, alleging that the father, in his life, had made such advancements to each of them as would preclude them from any further interest in his estate.
Before the trial, two of the plaintiffs withdrew from the suit, and the case'went to trial as to the other three. These *527three admitted by their pleadings that they had received advancements, and offered to bring them into hotchpot.
After the answer was filed, Mrs. Reed filed an inventory under the community law. The petition- having admitted that the property was community estate, there could arise no question on the trial as to whether or not the land was separate estate.
The plaintiffs offered evidence tending to show that there was separate estate, and they also asked instructions of the court—as, if the jury could determine whether or not any of the property was separate estate.
The question of separate property, under the pleadings, could certainly not have applied to any of the property, except the negroes that were given to the children as advancements. On that subject the court charged the jury that, if the first wife held said negroes as her separate property, by the laws of Mississippi, the gift of them to her children would not be an advancement which they were required to account for in this suit.
The real matters in controversy were, whether or not the deceased, John B. Reed, left a large amount of money, twenty or twenty-five thousand dollars, which had come into the possession of the widow and her children, who were defendants, and whether the land was worth ten dollars per acre, or twenty or twenty-five dollars per acre. For,-if there were only two thousand two hundred and fifty dollars left by the deceased, as proved by the defendants, and the land (one thousand one hundred and thirty-seven acres) on which the homestead was situated was worth only ten dollars per acre,, according to the evidence adduced by the defendants, then there was not an amount of property left by John B. Reed more than sufficient to furnish portions to the children of the second marriage, if there was enough, after satisfying the community interest of the widow and making the necessary deduction of the homestead and other exempted property, which was not, under the law, subject to distribution.
*528This being certain from the evidence, as it is presented in the record, it would hardly be necessary to consider the question, upon the charge of the court, as to the time when the value of the land advanced to the children was to be estimated. For if the land was given, as an advancement, before John B. Reed paid (about) five dollars per acre for it in 1865, certainly the amount then paid for the land, previously given to his children, to perfect his title, would be an advancement. The evidence is very uncertain about the gift of the land to the children before he had a deed to the land in 1865. H the plaintiffs had relied upon a verbal gift, and delivery of possession by their father, and valuable improvements thereon made by themselves, previous to the time when he made them deeds to such lands, evidence should have been adduced which would have more specifically established those facts, and, in the absence of it, the court cannot be held to have erred, in fixing upon the making of the deeds of conveyance to the land as the time when it should be considered as an advancement.
The exceptions taken to the evidence of the widow, and of her son, that they were allowed to speak of payments made by them, without producing the receipts upon the trial, is not a material error. Payments can be proved without producing the receipt. But if she was held accountable for all the money thus shown to have been paid out, it does not appear that it would or could have altered the result.
The minor matters being thus disposed of, the main question remains to be considered, which is, did the evidence on the trial so far preponderate in favor of the plaintiffs, as to the large amount of money coming into the hands of the widow, and as to the land being worth twenty instead of ten dollars per acre, that this court would be justified in setting aside the verdict rendered for the defendants ? We think not. ■The evidence was direetly conflicting upon both points.
Counsel for plaintiffs in error complain that the statement of facts does not fully state their case. That is the misfortune *529of their clients, if it be so, which cannot be relieved in this court. Wo can only act upon the record as it is here presented. The evidence is not only conflicting, but each side may be said to be very well sustained upon both of the main points in controversy.
Under such circumstances, this court cannot disturb the verdict.
Judgment affirmed.
Affirmed.