On Rehearing
McDONALD, Chief Justice.Appellees have filed two very able motions for rehearing in this cause. This court did not decide this cause under the new probate code, but on the contrary it is our view that the law applicable prior to the effective date of the new probate code is applicable. Under such law it is our view that a person asserting that an advancement was made has the burden of pleading and proving such fact. Rutherford v. Deaver, Tex.Com.App., 235 S.W. 853; Irwin v. Irwin, Tex.Civ.App., 300 S.W.2d 199 (no writ history); Interpretative Commentary, p. 161, Vol. 17A, Probate Code, V.A.T.S.
Appellees contend that under the law in effect prior to the new probate code, that an inter vivos transfer was presumed to be an advancement, and cite Morrison v. Morrison, 43 Tex.Civ.App. 339, 96 S.W. 100, Er.Ref., in support of such contention. In the Morrison case the property transferred was community property of the transferor and a deceased husband, who was the father of transferee, so the transferee already had an interest in the property. In the case at bar it should be noted that all of decedent’s property was her separate property (community of decedent and her husband, who was not the father of litigants herein), and the parties to this litigation had no interest therein except through the decedent. Prior to the effective date of the new probate code the Morrison case is not authority to create a presumption that an inter vivos transfer of separate property was an advancement. We think that the cases of Rutherford v. Deaver and Irwin v. Irwin, supra, are binding authority for the fact that the party asserting that a transfer of decedent’s separate property was an advancement, had the burden of pleading and proving such fact. See, also, Sparks v. Spence, 40 Tex. 693, 694, 699. In the foregoing case our Supreme Court said:
“Whilst in the case of community land so received we think the presumption, until rebutted, is that they were intended to be in discharge pro tanto of the child’s interest, we cannot say such presumption exists where the property conveyed is not part of the community. It is still however a question of fact * *
It is our view that there is no competent evidence in the record to establish that *655the amounts received by appellants are advancements. On the contrary, appellants received the checks; and in the instance of Jim Ed Pruner, he received a deed for a portion of the amounts contended to be advancements. We think that appel-lees failed to discharge their burden of proof that the amounts sought to be charged as advancements were in fact such. For the reasons stated, appellees’ motions for rehearing are respectfully overruled.
HALE, J., took no part in the consideration and disposition of these motions.