
Lindsay, J.
The correct determination of this case is dependent upon the proper construction of a will and a deed;, which must *207be done by the well established rules of construction, in connection with the statutes of the State, to arrive at a just conclusion as to the true import and legal effect of each of these instruments in settling the rights of these parties.
In 1844, J. D. Clements departed this life, after having first made and published his last will and testament, in which is the following clause:
“ I will and bequeath to my wife, Rachel Clements, and my daughter, 'Laura Jane Clements, and my two sons, Alexander and Isaac Baker Clements, my plantation on which I now live, known as league 11 o. —, lying on the Guadalupe river, about twelve miles above the town of Gonzales, on the east side of said river; that is to say, all that portion of said- league which lies west of a creek which runs near the east line of said league, and the first creek west of John King, be the same more or less ; which land is to be kept by my said wife for the purpose of rearing and educating my said children. And further, my wife is now pregnant, and from the course of nature must soon bring forth another child; should that be the case, that child, if living, is to be entitled to an equal support and equal share in the before described property when my youngest child becomes of age; that is to say, twenty-one years old; then, and in that case, the before described land is to be equally divided between my said wife and the aforesaid children. But should any of my aforesaid children die before they arrive at the age of twenty-one, their interest or share of said land is to go to the remaining children in equal proportions, to-wit: my children hereinbefore described.”
After the making of the will, the wife gave birth to two other sons, Isaac B. and Joseph Clements, who both died in 1861, before they had attained their majority, unmarried and childless. The daughter, Laura Jane, intermarried'with Kapoleon N. Conn, and with her husband, united in a deed of conveyance, in 1851, of all her interest, right, title and claim in the land devised by *208the will of her father, or which she derived by descent, as heir of her deceased father, to E. M. Davis, one of the defendants in error; and she died in the year 1858, leaving two infant daughters, who are the plaintiffs in error-. Their father, as their guardian, was holding the land for them when this suit was instituted for possession and for partition. The defendant,' E. M. Davis, insists that by virtue of his purchase and deed of conveyance from the mother, he is entitled to the interest in the lapsed legacies of the two deceased brothers of the mother. And this is the subject in controversy between the infant children of Laura Jane Conn and the purchaser of her interest in the league, the defendant, R. M. Davis.
The first question which presents itself for the consideration of the court is, as to the extent of the power of disposition by the testator over the property which he undertook to devise by his last will and testament. Under the laws of the Republic of Texas, as in force at the time of his death, could the father make such a devise of the estate? The plantation mentioned in the quoted clause of the will was the community property of himself and wife, and the husband consequently had no power of disposition over one moiety of it, by last will and testament. The wife survived the testator, and one moiety of it was hers by the law of community, or marital rights. The will was inoperative as to her moiety of the land. Then, under the law, as it existed at the death of the testator in 1844, three-fourths of the moiety of the father vested, by operation of the law of forced heirship, in his children. Upon his death, his five children, the daughter, Laura Jane, the mother of the plaintiffs in error, and her four brothers, took an estate in the property, by operation of law, which the father could not change or vary, by any testamentary devise. The will was therefore wholly inoperative upon that portion of the estate. The law of forced heirship was not repealed, till the twenty-fourth of January, 1856. (See Article *2093868, Paschal’s Dig.) Then, Laiira Jane Conn took, by descent or inheritance from her father, by the law of forced heirship, one-fifth of three-fourths of one moiety of the plantation, and one-sixth of one-fourth of that moiety, by devise under her father’s will; there being five children and the mother living at the death of the testator; and she having attained the age of twenty-one years before her death, the limited contingency fixed in the will for the investiture of her interest in the devisable portion of the estate had happened, and the right had become absolute. Laura Jane having died before her two brothers, she was not one of the remaining children to claim under the executory devise, by her survivorship. The only interest, therefore, which she ever had in the estate, as derived through her father, and which she could convey, as coming by descent or inheritance, by devise or purchase, (in the terms of the deed,) from her father, was twenty-three-two-hundred-and-fortieths part, (23-240) of his moiety of the plantation, attempted to be devised by him; which for practical purposes is but a modicum less one-tenth of the entire moiety.
The deed purports to convey only such portion of the estate as Laura Jane derived by purchase, or. devise, or descent, or inheritance from her father. Her interest in the other moiety of the plantation she inherited from her mother, and by the most liberal interpretation of the terms of the deed, they cannot be made, by any intendment to embrace the interest in the estate of her mother. The purchaser, therefore, took by the deed the interest which Laura Jane Conn had by forced heirship in the moiety of the-father, and the portion which was devised to her by his will in the one-fourth of that moiety, which aleñe he could dispose of by devise. The judgment is therefore reversed and the cause remanded, with directions to the court below that, in making partition of the land among the different parties in interest, the claim of the defendant in error, R. M. Davis, under the deed from Napoleon N. Conn, and his wife Laura Jane Conn, be allotted in conform*210ifcy with this opinion, giving him 23-240 parts of the land embraced in the plantation described and set forth in the will of J. D. Clements.
Ordered accordingly. .
