Bell v. Schwarz

• Decision Date: 01 January 1872
• Citation: 37 Tex. 572
• Parties: J. G. BELL AND ANOTHER v. SAMUEL SCHWARZ.
• Court: Texas Supreme Court

37 Tex. 572

J. G. BELL AND ANOTHER

v.SAMUEL SCHWARZ.

Supreme Court of Texas.

1872.

On the death of a connubial partner, the interest of the deceased in the community property passes to his or her heirs. The homestead property, however, remains subject to the homestead rights of the survivor; but when the survivor abandons the homestead, the heirs are entitled to partition.

APPEAL from Austin. Tried below before the Hon. Livingston Lindsay.

This suit was brought by J. G. Bell and W. S. Wright, the appellants, as guardians of the minor children of Horace and Lucy Cross, deceased, to recover from the appellee one-half of the community homestead of Horace and Lucy Cross, sold to appellee by Horace Cross after the death of his wife.

The only question in the case was as to the right of the survivor of a connubial partnership, there being children, at his or her own pleasure to dispose of the fee in the entire community homestead.

Hunt & Holland, for appellants. It has invariably been held that at the dissolution of the marriage by death of either of the parties, the survivor takes one-half of the community property, and the other half passes to the children of the marriage, or the heirs of the deceased; and that the survivor cannot, without restraint, alienate more than his own one-half of the community. This was always the Spanish law, and the statute found in Paschal's Digest, Article 4642, is but declaratory of the Spanish law. Now is it conceivable why the same rule for the protection of the minor children should not apply in the case of community homestead, as in case of community property generally? Does the mere fact of appropriating community property to homestead purposes change the fee in the property, or change its legal character and course of descent, or, in short, make it any the less community property?

If it is not still community property, what sort of property is it, and by what legal rule is it to be finally distributed?

We beg leave to refer the court to the case of Sossaman v. Powell, 21 Texas, 664, as a case in which views are expressed and legal principles enunciated, that would seem to be entirely applicable to this case.

Benj. T. Harris, for appellee. The homestead of a family is not governed, as other property, by the law of descent and distribution, where there is no other estate, as in this case; and on the death of either party to the connubial relation, the survivor possesses the right to dispose of the same in the exercise of paternal or maternal discretion as to what is for the best interest of the family. It may be, and often is desirable for the family to change their residence after the death of husband or wife, and the homestead and exempt articles in a majority of instances constitute the only means with which to effect such change. Was it contemplated by the framers of the Constitution,...