Ball, Hutchings & Co. v. Lowell

• Court: Texas Supreme Court
• Writing for the Court: BONNER
• Citation: Ball, Hutchings & Co. v. Lowell, 56 Tex. 579 (Tex. 1882)
• Decision Date: 24 March 1882
• Docket Number: Case No. 1372.
• Parties: BALL, HUTCHINGS & CO. v. CARRIE C. LOWELL.

56 Tex. 579

BALL, HUTCHINGS & CO.

v.CARRIE C. LOWELL.

Case No. 1372.

Supreme Court of Texas.

Mar. 24, 1882.

APPEAL from Galveston. Tried below before the Hon. Wm. H. Stewart.

On the 16th of August, 1880, the appellee, Carrie Lowell, as the widow of H. Lowell, deceased, for herself and her two minor children, aged respectively nine and twelve years, filed her application in the county court of Galveston county, in the matter of the estate of H. Lowell, deceased, for an allowance in lieu of homestead and other exempted articles, alleging that they did not exist in kind in the estate; and also for one year's support for herself and her children. On the 4th of October, the appellants, Ball, Hutchings & Co., creditors, filed their opposition to said application, mainly upon the ground that the deceased acquired lot number three (3), in block number six hundred and twelve (612), and improvements thereon, in the city of Galveston, in 1871, and occupied the same with his family as a homestead continuously to the day of his death. That in 1875 he transferred the said lot to his wife by deed of gift, but the homestead character of the same was never changed, and the property was used and occupied as such by himself and family to the time of his death. That said house and lot being the homestead, the widow ought not to be permitted to claim another and different homestead out of the estate, or to claim an allowance in lieu thereof. Ball, Hutchings & Co. were creditors of the estate, having a lien on lot 7 of the subdivision of the north half of block 683, in the city of Galveston, evidenced by deed of trust executed by Henry Lowell in his life-time. Their claim was duly probated. On the 5th of October, 1880, the county court rendered a decree allowing the appellee $3,600 in lieu of homestead, because there was not among the effects of the deceased, Henry Lowell, any homestead of the family; and also allowing $1,200 for the support and maintenance of the appellee and her two minor children for one year; and the further sum of $400 in lieu of other exempted personal property. To satisfy these allowances, the administratrix was ordered to sell the property of the estate, including that upon which appellants held a lien. Appellants took the case into the district court of Galveston county by appeal, and the cause was tried de novo, resulting in a decree, February 9, 1881, in favor of appellee, allowing her $2,000 in lieu of homestead, on the ground there was not among the effects of the deceased, Henry Lowell, a homestead of the family; $1,200 for one year's support, and $400 in lieu of other exempted articles. The administratrix was ordered to sell the property of the estate to raise money to pay said allowances, and was required to sell said mortgaged property last. The appellants, Ball, Hutchings & Co., brought the case into this court by appeal. [The above is from the brief of appellants.]

The appeal bond was filed within the prescribed time for appeal from the county to the district court, and the transcript was prepared, but the clerk, being unaccustomed to the duties of his office, failed to deliver the same to the clerk of the district court in time for the next term thereof after the appeal. A motion was made by appellee in the district court to dismiss the appeal, on the ground of non-compliance with the statutory requirement as to transcripts, which motion the court overruled, and an appeal was taken on that ground by appellee.

Ballinger & Mott, for appellants.

John T. Harcourt, for appellee.

I. It is made the imperative duty of the court to set apart for the use and benefit of the widow and minor children of the deceased all such property of the estate as may be exempt from forced sale by the constitution and laws. And in case there should not be among the effects of the deceased all or any of the property so exempted, the duty is imperative to make a reasonable allowance in lieu thereof. R. S., arts. 1993, 1994, 1995; Scott v. Cunningham, Tyler Term, 1881; James v. Thompson, 14 Tex., 466.

II. It is the property of the estate, and the effects of the deceased only, that can be set apart by the court. The new inventory, filed September 28, 1880, was substituted as a correct inventory of the property of the estate. There was not found among the effects of the deceased in that inventory any homestead. Lot No. 3, block No. 612, where the deceased had lived, was the separate property of the surviving widow, conveyed by deed dated June 5, 1875. The house was old and untenantable, and not worth fixing. Const., sec. 51, art. 16; R. S., arts. 1993, 1994, 1995, 2003; Green v. Crow, 17 Tex., 184;Mabry v. Ward, 50 Tex., 404; Scott v. Cunningham, Tyler Term, 1881; Law Journal, December 14, 1881. The court erred in not deciding that lot No. 3, in block No. 612, and improvements in the city of Galveston, was the homestead of the deceased, Henry Lowell, and his family, at the time of his death. Same authorities as cited above.

BONNER, ASSOCIATE JUSTICE.

Appellee, Carrie C. Lowell, presents by cross-assignment of error the preliminary question, that the court below erred in not dismissing the appeal to the district court from the county court.

We do not think that the court erred in overruling the motion to dismiss the appeal to the district court.

The statute made it the duty of the county clerk to make out and transmit to the clerk of the district court the transcript; and further provided, that if he could not, for want of time, do so to the first succeeding term, he should to the next term thereafter; showing that time was not absolutely essential to give the district court jurisdiction. The transcript was filed within a day or two after the time fixed for the meeting of the first term of the court after the appeal. The clerk gave an excuse for the delay, which, if not altogether satisfactory to excuse him, should, we think, under the circumstances, be held sufficient to prevent the prejudice which would have resulted to appellants, Ball, Hutchings & Co., by a dismissal of their appeal.

The material question in the case is, did the court below err in making the allowance of $2,000 in lieu of a homestead, and in ordering the property upon which Ball, Hutchings & Co. had a lien by trust deed, to be sold to raise the amount of this allowance?

The constitution provides that the homestead of a family shall be and is thereby protected from forced sale for the payment of all debts except those of certain specified classes. Const. 1876, art. 16, sec. 50.

The preceding section gives to the legislature the power, and makes it their duty, to protect by law from forced sale also, a certain portion of personal property; which has been done.

A homestead may be the separate property of the husband, the community property of the husband and wife, or the separate property of the wife. If the latter, the husband still has a homestead right in it, and should the wife die first he has an interest by inheritance, and the other heirs of the deceased wife cannot compel a partition of it so long as he may elect to use or occupy it as a homestead. While both husband and wife live and occupy it as such, it is in fact and law the homestead of the family. Const. 1876, art. 16, sec. 52.

The evident intention and object of the homestead exemption was to provide a home for the family; and under our statute this exemption does not cease with the death of the husband; but if it were his separate property even, it still remains the homestead of the family so long as it in fact continues to be used as such; and it is made the duty of the court to set it apart for this purpose. R. S., art. 1993.

The statute provides that, in case there shall not be among the “effects” of the deceased all or any of the property exempted from execution by the constitution and laws of the state, the court shall make a reasonable allowance in lieu thereof. R. S., art. 1994.

By another article of the statute the word “effects” is defined to include all personal property and all interest therein. R. S., art. 3138, subdiv. 12.

Article 1994 of the statute does not in express terms provide for an allowance in lieu of the homestead eo nomine, and the particular article which gives the allowance might, under the statutory definition of the word “effects,” be construed to apply to exempt personal property only. R. S., art. 1994.

It may be inferred, however, by the succeeding article, that a homestead is embraced within the language of the statute, for which, when one does not exist in kind, an allowance is to be made. But we are of the opinion that the statute did not intend to include a case like the present, where the widow and children already have a homestead, and which was the homestead of the family during the life-time of the husband and at his death.

When the husband dies the wife becomes the head of the family, and the children, so long as they remain with her, are constituents of that family. The allowance in lieu of the homestead must be presumed to have been provided for the purpose of purchasing a homestead. No person, however, is privileged to be protected in two homesteads; and if the family already has an existing one, which was the family homestead during the life-time of the husband and at his death, though it may be the separate property of the wife, then the policy and objects of the law are fulfilled.

The intention of the legislature was to provide out of the assets of the deceased a homestead for the family, if they had none, and not, as in a case like the present, to provide an allowance in lieu of that which already existed. An allowance can be given in lieu of that which has no existence, but it would be a perversion of the term to give it in lieu of that which already has an existence.

Again, in the case under consideration, the homestead had been conveyed by the husband to the wife, not for a valuable consideration, but as a gift, stating...