Carter v. Randolph

• Decision Date: 01 January 1877
• Citation: 47 Tex. 376
• Parties: R. VICTORIA R. CARTER AND HUSBAND v. LUCY E. RANDOLPH.
• Court: Texas Supreme Court

47 Tex. 376

R. VICTORIA R. CARTER AND HUSBAND

v.LUCY E. RANDOLPH.

Supreme Court of Texas.

1877.

APPEAL from Robertson. Tried below before the Hon. Spencer Ford.

This case was submitted upon an agreed statement, under the rules adopted January 18, 1877, at Galveston. The facts are given in the opinion.

W. H. Hamman, for appellants.--Under the 26th section of the probate law of 1870, the property in controversy forms no part of the estate of deceased, and, unless this section provides a rule of descent (not of distribution) of the property in the homestead, and casts the inheritance upon the constituent of the family who survives, to the exclusion of the heirs of the deceased, and abrogates all laws of descent in conflict with it, (and this by implication, for certainly it does not do so in terms,) the court below erred in its disposition of the case on defendant's pretended plea in abatement and demurrer.

The section certainly withdraws, or rather withholds, the property reserved from forced sale from administration, and therefore, the fact that the succession of the deceased was still open, cannot in any way affect the case, and the ruling of the court cannot be sustained on this ground.

Does the 26th section give us the rule of descent? The title of the law is, “An act prescribing the mode of proceeding in District Courts in matters of probate;” and to give the law the effect contended for by appellee, would make it obnoxious to the constitutional provision, that “every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title.”

Evidently, the statute contemplates only a remedy, and not a rule of right. If I am correct in my view of this statute, it is sustained by the soundest principles of policy and right. If the court below was correct, I venture to say that the statute is not based upon principles of law or morals, and of course not upon grounds of public policy.

Should appellee be sustained by the determination of the suit, and marry again and then die, her second husband, being the surviving constituent of the family, would take the home; and should he also marry a second time and die, and his wife survive him, and so on, indefinitely, the homestead would be handed down for all time to strangers, for whom the original proprietor could have felt no concern, in whom he had no interest, and for whom it was not in any way his duty to provide; and appellant, his sister, whether fortunate enough to be provided with a home or not, would be forever excluded from her rightful inheritance.

Suppose the deceased had no wife, but had five living children, all of age or all minors, no matter who are the constituents of the family, they must remain upon the homestead, and use and enjoy it jointly forever, because it cannot be partitioned. Again, suppose, at the time of his death, the deceased had a negress keeping house for him, and, by accident, she is the only constituent surviving, she takes the property reserved from forced sale.

These results, and many others which would inevitably follow, were surely never contemplated; and a construction of the law which forces such conclusions cannot be correct, and, I believe, will not be sustained by this court.

The property involved in this suit was the separate property of the deceased, and, under the facts of the case, and the law of descent and distribution, passed March 18, 1848, appellants take one half, and are entitled to the partition.

Collard & Field, for appellee, cited Shepherd v. Cassiday, 20 Tex., 28;Gouhenant v. Cockrell, 20 Tex., 96;Mills v. Von Boskirk, 32 Tex., 362;O'Docherty v. McGloin, 25 Tex., 67;Singletary v. Hill, 43 Tex., 590;Lockhart v. White, 18 Tex., 109;Reeves v. Petty, 44 Tex., 253;Green v. Crow, 17 Tex., 183;Wood v. Wheeler, 7 Tex., 13;McCreery v. Fortson, 35 Tex., 648;Pryor v. Stone, 19 Tex., 372;Sossaman v. Powell, 21 Tex., 664.

ROBERTS, CHIEF JUSTICE.

Counsel agree that the case is made by plaintiff's pleading, as follows: “Date of suit, October 7, 1875; George F. Randolph died intestate and insolvent, October 16, 1873; was the owner of the property in controversy in his separate right, and at the date of his death he and his wife (appellee) occupied it as their homestead.

He leaves no children, and no heirs, except his sister, Mrs. Carter, who, joined by her husband, brings this suit for one half the property, and for partition. The widow owns a large property in her own right, and has not resided on the property in controversy since the death of her husband.

Appellee administered on estate. Succession still open. Issues raised on demurrer: Do appellants show a right of property and of partition? Court below held not, and dismissed the case. Appealed from.

Assignment of errors: Court erred in sustaining defendant's plea in abatement and demurrer, and in rendering judgment for defendant.”

We are of opinion that the court did not err in its judgment upon the case as here presented.

It is contended by appellants that, as the estate is insolvent, the homestead property was, and is, no part of the...