Dawson v. Holt

• Decision Date: 01 January 1875
• Citation: 44 Tex. 174
• Parties: O. G. DAWSON ET AL. v. A. A. HOLT ET AL.
• Court: Texas Supreme Court

44 Tex. 174

O. G. DAWSON ET AL.

v.A. A. HOLT ET AL.

Supreme Court of Texas.

1875.

APPEAL from Smith. Tried below before the Hon. M. H. Bonner.

This was a suit brought by the heirs of a deceased wife against the purchasers of the homestead sold them by the surviving husband on the day after he had filed an inventory and appraisment of the community property, under the act supplementary to the act better defining marital rights. (Paschal's Dig., art. 4648.) The facts are set out in the opinion, except that the bad conduct of the husband alluded to was his immorality, living in notorious adultery with a negro woman, neglect of his children, failure to support or educate them, &c.

The affidavit of Green, relied on for new trial, was to the effect that he had heard the husband the day before the sale say that “some of the heirs opposed him and Mary Jane, (a freed woman of color with whom he had been living in adultery for some time,) and that he had determined to dispose of the place from under them, and that they might shift for themselves or go to hell; that he knew he could get them out, and he intended to do it;” that Smith's conduct with the negro woman was notorious.

Verdict and judgment for the defendants, and the plaintiffs appealed.

Robertson & Herndon, for appellants, insisted--

I. The power given the survivor to dispose of community property is not given by the statute until after the inventory and appraisement has been acted on and approved by the Probate Court. (Paschal's Dig., arts. 1299, 1300, 4648.)

II. Upon the death of the wife, descent was cast eo instanti upon her heirs. The husband surviving could not dispose of the interest of the heirs, except for the payment of debts. (Jones v. Jones, 15 Tex., 145;Cooper v. Singleton, 19 Tex., 267;Prior v. Stone, 19 Tex., 372;Wall v. Clark, 19 Tex., 321;Tadlock v. Eccles, 20 Tex., 782;Sossaman v. Powell, 21 Tex., 666;Brewer v. Wall, 23 Tex., 585;Goode v. Combs, 28 Tex., 50;Burleson v. Burleson, 28 Tex., 418;Thompson v. Cragg, 24 Tex., 599;Canon v. Murphy, 31 Tex., 405;Barrett v. Barrett, 31 Tex., 344;Walker v. Howard, 34 Tex., 478;Morrell v. Hopkins, 36 Tex., 686,Walker v. Young, 37 Tex., 519;Hartman v. Thomas, 37 Tex., 90;Magee v. Rice, 37 Tex., 498;McAlister v. Farley, 39 Tex., 558;Collins v. Box, 40 Tex., 190.)

III. The survivor, when properly qualified under the act of August 26, 1856, holds the same relation to the community property, the heirs and creditors, in all respects, as an administrator does to an estate under the general probate laws. Upon payment of the debts of the community his trust ceases, and he becomes tenant in common with the heirs in the remainder of the estate. (Brackett v. Devine, 25 Tex. Supp., 194;Tucker v. Brackett, 28 Tex., 336;Wheeler v. Selvidge, 30 Tex., 407.)

IV. Can the surviving husband, under this act, do more than he had power to do in the marital partnership which under the law he is administering? It seems that his power to sell ought not to be increased. The law does not supply the consent of the wife to the disposal of the homestead. It is no part of the estate subject to administration--his power to administer should not attach to it. (Sossaman v. Powell, 21 Tex., 666;Burns v. Jones, 37 Tex., 52;18 Cal. Rep., 73;12 Cal. Rep., 214-216;8 Cal. Rep., 72, 509;5 Cal. Rep., 252;Brentam v. Storey, 39 Cal. Rep., 183.)

V. The rights of the children are not superior to that of the parent, but are to that of all others. Upon its abandonment or sale by the parent they, not having been furnished any other, can assert their rights in the homestead as tenants in common with his vendees, as in this case. (See authorities above.)

VI. The heirs of Mrs. Smith took their interest in her estate August 31, 1864, and held it until November 16, 1866, (date of sale,) subject only to the contingency of the homestead privilege, which was then abandoned, when their inheritance became a vested right, protected under the Constitution. (Brentam v. Storey, 39 Cal. Rep., 183.)

Stephen Reaves, for appellees.

IRELAND, ASSOCIATE JUSTICE.

In 1864 J. P. Smith and Margaret Smith, husband and wife, were the owners of certain property situated in the town of Tyler, which was community property. In that year the wife died, leaving plaintiffs, her children and heirs surviving.

The property was occupied by Smith and wife as a homestead at the date of Mrs. Smith's death, and continued to be so occupied by Smith and children, plaintiffs, after the death of the wife and up to the sale by Smith.

There was no regular administration on the wife's estate, and no debts are shown to have existed against the community. On the 15th day of November, 1866, J. P. Smith, the surviving husband, filed in the probate court of Smith county an inventory and appraisement of the community estate of himself and deceased wife, and on the 16th day of November, 1866, he sold and conveyed the property in controversy to defendants for the sum of about $1,700, gold.

The entire property of the estate, as shown by the inventory, amounted to $2,307. At the date of the sale by Smith some of the children were adults and some minors.

It is alleged in the pleadings and contended for by plaintiffs, 1st, that there is no authority in a survivor under the law to sell the community estate until the inventory and appraisement has been filed and approved or acted on by the probate court; 2d, that supposing the law to have been complied with in this respect, Smith's object in making the sale was to defraud his children, and that defendants knew this fact; and 3d, that there is no power in the surviving husband to sell the homestead so long as there are minor children residing with him on said homestead.

The first of these propositions involves the construction of the 3d section of the act of 1856 amendatory of the marital rights act of 1848. (Paschal's Dig., art. 4648.)

So much of that section as is important to notice reads thus:

“It shall be the duty of the surviving husband, at the death of his wife, if she have a surviving child or children, to file in the county court a full, fair, and complete inventory and appraisement of all the community property of himself and his deceased wife, to be taken and recorded as in cases of administration, and to have the same force and effect in all suits between parties claiming under it.” “After which, without any administration or further action whatever in the probate court, he shall have the right to manage, control, and dispose of said community property, both real and personal, in such manner as to him may seem best for the interest of said estate, and of suing and being sued with...