Earle's Ex'Ors v. Earle
| Decision Date | 01 January 1853 |
| Citation | 9 Tex. 630 |
| Parties | EARLE'S EX'ORS v. EARLE. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Where the wife without good cause voluntarily abandons her husband for several years (say three or four) immediately previous to his decease, she forfeits her claim to the homestead and widow's allowance. (Note 113.)
Appeal from Harris. Proceedings in this case commenced before the Probate Court of Harris county. It was by an application of the appellee, as the widow of the appellant's testator, to have the late homestead of her deceased husband stricken from the inventory of his estate, and for the further allowance to her of one year's support for herself and minor child, and also such other property as is directed by the statute to be exempted from forced sale. To this application the executors of Earle made opposition, and in their answer charge, in substance, that the petitioner, Ann Earle, had, in her own wrong and of her own accord, abandoned her deceased husband, his house and bed and board, for several years, say three or four, before his death, and continued obstinately so to abandon the said deceased and to live apart from him until his death, against his wishes and entreaties, failing and refusing all the while to perform any of the duties of a wife; that after the said abandonment of her husband, the petitioner rejected the name of her husband and assumed that of Green, the name of her former husband, and by that name instituted and carried on suits in the District Court of Harris county. To this answer the petitioner demurred, and the demurrer was sustained, and the Probate Court proceeded to decree that the homestead of the deceased, with two hundred acres of land, should be stricken from the inventory and set apart for the petitioner and her minor daughter, and making other provisions for her, under articles 1153 and 1154, Hart. Dig. The executors appealed to the District Court.
It is not material to state all the proceedings of the District Court. It is sufficient to say that a statement of about the same matters, as objections to the granting the prayer of the petitioner, was again, on demurrer, overruled, and resulted in a decree similar in its terms to the decree of the probate judge, and the executors appealed to this court.
J. C. Walker, for appellants. Admitting the answers to be true, they formed a good defense against the petition.
Where the wife has been guilty of such violations of conjugal duty as would free the husband at the time of his death from all obligations to her for a support, such violations of conjugal duty pleaded by the executors will be a good defense to the claim of the widow against the estate for an “allowance.” That the executor or heir may plead such matter. (6 Bing., 33, old ed., 135, Heth v. Graham.) The abandonment of her husband by the wife exempts him from the duty of supporting her, and forfeits her privileges and immunities under the Constitution.
From the above authorities it would seem that the petitioner would have been barred by the common law of her dower. Admitting the answers to be true, the testator would have been entitled to a divorce (Hart. Dig., arts. 847, 848) at the time of his death; therefore, according to the above authorities, he was free from all liability to her, and consequently his estate is free from the charge of her support or “allowance.”
By the demurrer she admits that she “of her own wrong” abandoned the testator, and that she did defame him by “charging him with acts calculated to bring him into disrepute and disgrace in the community,” for which cause even a forced heir might have been disinherited. (Hart. Dig., 3263.) Therefore the claim of the widow (who is not so tenderly regarded in the law as a forced heir) should be disregarded, she having been guilty of the same offense.
E. A. Palmer, for appellee. The facts set up by the executors in defense against the claim of the widow in this case are wholly insufficient in law to bar the wife's right of dower at common law; and I hold and believe that they are insufficient to bar the rights here given her by statute. If so, the judgment of the court upon the demurrers was not erroneous.
According to common law, the husband could not,...
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