Crocker v. Crocker

• Decision Date: 01 June 1898
• Citation: 46 S.W. 870
• Parties: CROCKER v. CROCKER.
• Court: Texas Court of Appeals

46 S.W. 870

CROCKER v. CROCKER.

Court of Civil Appeals of Texas.

June 1, 1898.

Appeal from district court, San Augustine county; Thomas C. Davis, Judge.

Action by Jennie Crocker against J. M. Crocker, administrator of the estate of J. L. Crocker, deceased. From a judgment for plaintiff, defendant appeals. Modified.

Geo. E. Gatling and S. M. Davis, for appellant.

FLY, J.

Mrs. Jennie Crocker filed a petition in the county court of San Augustine county, alleging that the estate of J. L. Crocker, deceased, an administration of which was therein pending, was insolvent; that she was the surviving widow of deceased, and was the mother of two minor children by him, and that there were three minor children by a former marriage; and she prayed for a year's allowance for her and her children, and for an order setting aside exemptions permitted by law. The county court granted an order setting aside as the yearly allowance the sum of $250, less the value of certain corn and bacon held by the widow, and setting aside a tract of 200 acres as a homestead, being the same on which deceased and his family were living at the time of his death, and setting aside certain exempt personal property, and certain sums in lieu of exempt property not on hand. The cause was appealed to the district court, where the appellant filed a pleading in which it was alleged that J. L. Crocker had died on March 8, 1896, and was at that time possessed of certain described personal property of the value of $1,285.50; that administration was opened on the estate in March, 1897, and appellant was appointed administrator; that Mrs. Crocker had taken possession of the personal property, and had, together with the minors, used and enjoyed the same, and had consumed all of said property before administration was opened upon the estate; and that they were not, therefore, entitled to the year's allowance. The prayer was to the effect that the order of the county judge setting aside the year's allowance and the order allowing money to be paid in lieu of exempt property be set aside. The district judge rendered judgment setting aside 120 acres of land out of a 240-acre tract occupied by deceased as a homestead to the widow and minors as a homestead, and also allowed $160, which they might take in any lands of the estate in lieu of the 80 acres required to make a 200-acre homestead, and also set aside to the widow and children the exempt property, and, in lieu of certain of the exemptions not on hand, there was an allowance of $120. Nothing was given for the year's allowance.

Appellant requested the trial judge to file his conclusions of law and fact, which request was refused, on the ground that the court was in the act of adjourning when the request was made. The right to conclusions of law and fact is statutory, and should never be denied, unless the circumstances are such as to render it impracticable to comply with a request for them. Davis v. State, 75 Tex. 420, 12 S. W. 957. The qualification of the bill of exceptions by the judge does not indicate at what hour of the day the request for the findings was made. He may have been in the act of adjourning in the morning, and might have had sufficient time before the close of the day to file the conclusions of law and fact. It is judicially known to this court that the session did not by law end on the day on which the court adjourned, and that there was ample time of the session remaining in which to have filed the findings of law and fact, and it should have been done. There is, however, a full...