Anderson v. McGee

• Decision Date: 25 May 1910
• Parties: ANDERSON et al. v. McGEE et al.
• Court: Texas Court of Appeals

130 S.W. 1040

ANDERSON et al. v. McGEE et al.

Court of Civil Appeals of Texas.

May 25, 1910.

Rehearing Denied October 12, 1910.

Appeal from District Court, McLennan County; Marshall Surratt, Judge.

Suit for partition by Mabel Anderson and others against Ben McGee and others. From a decree ordering a sale and directing the payment of certain claims against the common ancestor of the parties out of the proceeds, plaintiffs appeal. Reversed and remanded.

James E. Yeager, for appellants. Prendergast & Williamson, for appellees.

RICE, J.

Appellants, as part of the heirs of Hugh and Lucy A. Evans, deceased, brought this suit for the partition of 15.80 acres of land constituting their rural homestead, situated near Waco, in McLennan county, against Ben McGee and his two minor children, Edwin and Margaret McGee, who were the grandchildren and remaining heirs of said decedents, making the usual averments therefor, and alleging that there were no debts against said estate and no necessity for an administration thereof. Defendant Ben McGee answered that Lucy A. Evans died intestate June 20, 1905, and that at the time of her death she was due Dr. King on open account the sum of $18.50 as a medical bill for personal services, and that she was likewise due said King upon a note executed by her on March 28, 1905, the sum of $398, as well as interest and attorney's fees thereon, both of which claims were by the widow of said King duly transferred to him for value, and that he had likewise paid $11.98 taxes on said property, and for all of which he asserted that he was entitled to a lien or a quasi lien upon said property, praying for a foreclosure thereof. A guardian adlitem being appointed for said minors, they answered, pleading a general demurrer and general denial against the petition of plaintiffs, as well as the answer of the defendant Ben McGee. Plaintiffs filed a supplemental petition, containing general and special exceptions to defendants' answer, and general denial, and also specially denied the existence of any lien upon said property, pleaded limitation as against the account and note, and that the debt for which said note was executed was barred prior to the execution thereof, and admitting that Lucy A. Evans died intestate June 20, 1905, but alleging that her estate was insolvent at the time of her death, and that there was no administration upon her estate and none was necessary; that said land was the country homestead of said Hugh Evans and his wife, Lucy A. Evans, and Lizzie and Susie Murdock, their grandchildren, and that the same was occupied by them as a homestead at the death of Hugh Evans in 1895; that they owned no other property, and that the estate was insolvent at his death; that Lucy Evans and said two grandchildren after his death continued to occupy said land as a homestead until the death of Lucy A. Evans in 1905; that the said grandchildren were adopted by Lucy A. Evans, and they depended on her for a support; that Josephine Smith was a married daughter of Hugh Evans and Lucy A. Evans prior to 1901, but during said year she was divorced from her husband, and, owning no property of her own, returned to her mother's where she lived as one of the family with her mother and granddaughters, assisting in all the household work, until the death of Lucy A. Evans in 1905, after which time she and said two granddaughters continued to occupy said homestead for several months, until they were compelled to temporarily move to town to secure the services of a physician, since which time they have been collecting the rents from said place; that said Mrs. Smith has never married since her divorce in 1901, and was an unmarried daughter living and making her home with her mother and family at the time of her death, occupying said land as a homestead, and has never abandoned the same, nor has she ever owned any other property; that Susie Murdock also has a like homestead right in said property, and that said homestead is not subject to the alleged debts and liens.

The proof shows that the land in question was acquired by Hugh and Lucy A. Evans some time prior to 1895, and was occupied by them, together with their grandchildren, Lizzie and Susie Murdock, as a homestead at the time of his death, which occurred in that year, and that subsequent to his death his widow, with said two grandchildren, continued to reside upon said property as their home until her death, which occurred in June, 1905. It was further shown that Mrs. Josephine Smith, née Evans, one of the plaintiffs, was the daughter of said Hugh and Lucy A. Evans, and that during frequent intervals in her father's lifetime, subsequent to the death of her first, and after she was divorced from her second, husband, had lived and made her home with her parents; that in 1901, after being divorced from her last husband, she moved to her mother's home upon this land, where she continued to live and make her home until the latter's death, with the exception of short intervals, when she was either visiting her relatives or temporarily at work; that she owned no home and had no property, and for several months after her mother's death she and said grandchildren, who were adults at the time of their grandmother's death, continued to live upon the place until they were forced to move to town to obtain medical treatment for Lizzie, who was an invalid, and subsequently died, during which period of time they rented out the homestead. We think it is satisfactorily shown that the estates of both Hugh and Lucy A. Evans were insolvent at the time of their respective deaths, and that the parties, plaintiff and defendant, were their children and grandchildren, and were entitled to the respective interests asserted by them as heirs at law in the land sued for.

A jury being waived, the case was tried before the court, who, after overruling all exceptions and demurrers, rendered a decree establishing the rights of the parties to the respective interests in said land, as alleged, and ordered a sale thereof for the purposes of partition, foreclosing the lien on all of said land in favor of said Ben McGee for the alleged $11.98 taxes paid by him, and on half of said land in his favor for said note, decreeing that he was entitled to a 1/55 interest therein, and directing the payment of the remainder of said money, after the satisfaction of said liens, to the parties in accordance with their respective interests, from which judgment this appeal is prosecuted.

The controlling question, therefore, presented by this appeal seems to be whether or not the title to the land in controversy, which was the homestead of the family of Lucy A. Evans in her lifetime, upon her death descended to and vested in her heirs, freed from the claims of creditors, on the ground that she left surviving her in the persons of Mrs. Josephine Smith and said granddaughters such constituents of the family as entitled them to homestead rights therein, because, if this question is determined in favor of appellants, then it is clear that the court erred in foreclosing said lien in behalf of said McGee, with the exception of his claim for taxes.

The homestead of the family is exempt from forced sale for the payment of all debts, except the purchase money, taxes, and for work and material used in constructing improvements thereon, etc., during the lifetime of its owners. Const. art. 16, § 50. And section 52 of said article provides that on the death of the husband or wife or both the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having jurisdiction, to use and occupy the same. In discussing this section of the Constitution in Zwernemann, Guardian, v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485, Gaines, C. J., says that "under the probate act of 1848, it had been decided that in insolvent estates the widow and minor children took an absolute title to the homestead, to the exclusion of the adult heirs"—citing Horn v. Arnold, 52 Tex. 161. And that it was probably the purpose of this provision to prevent a repetition of that legislation. When the present Constitution was adopted, the policy of exempting from administration for the payment of debts...