Foreman v. Meroney

Citation62 Tex. 723
Decision Date24 June 1884
Docket NumberCase No. 5027.
PartiesW. C. FOREMAN ET AL. v. W. L. MERONEY ET AL.
CourtSupreme Court of Texas

OPINION TEXT STARTS HERE

APPEAL from Collin. Tried below before J. M. Pearson, Esq., Special Judge.

The following statement of appellants' counsel presents the case:

This suit was brought by appellants against appellees for partition of land belonging to estate of D. C. Foreman. Appellee Lucetta Meroney claimed the right, as surviving wife of D. C. Foreman, to use and occupy the land as the homestead of herself and D. C. Foreman, and that it had been set apart to her by the county court of Collin county. Reply, abandonment, and that Mrs. Meroney had elected to no longer use and occupy the land as a homestead.

The judge filed special findings, which were incorporated in the judgment, and which are as follows:

1st. That D. C. Foreman and Mary Ellen Foreman intermarried in Collin county, Texas, on the 16th day of January, 1856.

2d. That the two tracts of land sought to be partitioned in this cause were conveyed to D. C. Foreman after his marriage with Mary E. Howard and during her life-time, and that the entire consideration for each tract of land was the separate property of D. C. Foreman.

3d. That D. C. Foreman and his wife, Mary E. Foreman, resided on said land as their homestead until the death of Mary E. Foreman, which occurred about the year A. D. 1864, and that at her death she left surviving four children, the result of her marriage with D. C. Foreman--W. C. Foreman, Donna Foreman, Abbie Foreman, now Abbie Dunn, and Belle Foreman, now Belle Abernathy.

4th. That after the death of Mary E. Foreman her surviving husband intermarried with Lucetta Howard. There were born to them three children, namely: Ruth Foreman, Swan Foreman and Ellie Foreman.

5th. That the said D. C. Foreman and Lucetta Foreman resided on the land in controversy as their homestead at the date of death of D. C. Foreman.

6th. That D. C. Foreman died on the 19th day of May, 1879, and that administration closed on his estate, and that an order was made in the county court of Collin county, setting apart for the use and benefit of Lucetta Foreman, and for the minors Belle, Donna, Abbie, Ruth, Ellie and Swan Foreman, the homestead of two hundred acres.

7th. That Lucetta Foreman intermarried with defendant W. L. Meroney on the 25th day of November, 1879.

8th. That defendant W. L. Meroney, for a consideration of $1,350, $1,000 of which was cash, and $350 to be paid on a note given by W. L. Meroney, bought of J. M. Wilcox, on the 1st day of January, 1880, a house and lot in the town of Plano, and received a deed therefor.

9th. That W. L. Meroney and Lucetta Meroney moved to the house and lot bought of J. M. Wilcox, and occupied the same as a home until they afterwards sold it, which was done before the balance of the purchase money was paid. That Belle Foreman, now Belle Abernathy, and Abbie Foreman, now Abbie Dunn, lived with them on the Wilcox place till each of them married. That it was the intention of W. L. Meroney and Lucetta Meroney, after they moved to the Wilcox place, not to return and live on the land in controversy.

10th. That on the 27th day of September, A. D. 1882, W. L. Meroney and Lucetta Meroney removed from Collin county to Parker county with the expectation to make it their future home, and with no intention to return and live upon the land in controversy, and they expect now never to return to live on the land in controversy unless compelled by poverty or unavoidable circumstances. That they now own no land in Parker county.

11th. That Lucetta Meroney, by her husband, W. L. Meroney, has rented to tenants by the year the land in controversy since 1879, and received rents of the same.

12th. That the reasonable value of the yearly rents of the land in controversy is $3.50 per acre.

13th. That the said Lucetta Meroney has never elected to no longer use or occupy the land in controversy as a homestead.

14th. That the minors Ruth, Swan and Ellie now reside with their mother in Parker county, and that they have no other property or income except their interest in the land in controversy.

The court stated conclusions of law as follows:

1st. That Mrs. Lucetta Meroney has the right to rent the land in controversy, and to appropriate the rents to the use and benefit of herself and her minor children during her natural life, or so long as she remains a citizen of Texas.

2d. That it is not necessary, in order for Mrs. L. Meroney to use or occupy the land in controversy as a homestead, that she should personally live on said land, or that she should have an intent ever to live on said land in person.

3d. That the fact that Mrs. L. Meroney lives in a different county from where the land is situated, and rents said land yearly, does not constitute such an abandonment of the land in controversy as to warrant its partition among the heirs of D. C. Foreman.

Judgment for appellees Meroney and wife.Garnett & Muse and W. H. Abernathy, for appellants, cited: Gilliam v. Null, 58 Tex., 304; Ayers v. Shackey, Tex. L. Rev., vol. 3; Schneider v. Bray, Tex. L. Rep., August, 1883; Pressley v. Robinson, 57 Tex., 453;Shryock v. Latimer, 57 Tex., 674;Evans v. Womack, 48 Tex., 230;Iken v. Olenick, 42 Tex., 195; Railroad Co. v. Winter, 44 Tex., 610;Philleo v. Smalley, 23 Tex., 502;Franklin v. Coffee, 18 Tex., 413; Methery v. Walker, 17 Tex., 597; Thomas v. Williams, 50 Tex., 275;Wright v. Dunning, 46 Ill., 271; Story on Conflict of Laws, sec. 47; Cross v. Everts, 28 Tex., 523; Stewart v. Brand, 23 Iowa, 478; Orman v. Orman, 26 Iowa, 361; Monk v. Capers, 5 Allen, 126; Tyffe v. Berry, 18 Iowa, 5; Dunbon v. Woodbury, 24 Iowa, 74; Moore v. Litman, 43 Ill., 169.

K. R. Craig, for appellees.

DELANY, J. COM. APP.

When D. C. Foreman died he left his wife Lucetta and seven children. Four of these were the children of his first marriage. Three of them were quite young, and the children of the second and surviving wife. The oldest of the children was a son, who seems not to have been a member of the family when the homestead was set apart to them. One of the elder daughters had died before that time; so that the family to whom the homestead was set apart consisted of the second wife Lucetta and her three minor children, together with two daughters of the first marriage. These two daughters afterwards married and withdrew from the family; and now they join their elder brother in a suit for partition of the homestead against their stepmother and the three minors. They say that she has left the place and has no definite purpose of returning to it, unless poverty or necessity shall render it expedient for her to do so. This, they insist, is an abandonment of the homestead, both for herself and her children; and there is nothing to prevent a partition among all the interested parties. There is no dispute about the facts.

The widow has married again, and is living with her husband and children...

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37 cases
  • Gulf Production Co. v. Continental Oil Co.
    • United States
    • Supreme Court of Texas
    • 1 Noviembre 1939
    ...be doubted if this finding is sufficient to constitute a legal abandonment of the homestead. 22 Tex.Jur. pp. 71, 72, sec. 46; Foreman v. Meroney, 62 Tex. 723, 727; Sheperd v. Cassiday, 20 Tex. at pages 24, 30, 70 Am.Dec. 372, and authorities post. Be that as it may, however, there is not a ......
  • Cline v. Niblo
    • United States
    • Supreme Court of Texas
    • 25 Junio 1928
    ...by the unmarried daughter and the minor children were asserted. Const. art. 16, § 52; R. S. arts. 3485, 3488, 3496, 3497; Foreman v. Meroney, 62 Tex. 723; Allen v. Allen (Tex. Civ. App.) 158 S. W. 1049; authorities No application was made to the probate court to set aside the homestead to t......
  • Borchers v. Borchers
    • United States
    • United States State Supreme Court of Missouri
    • 7 Febrero 1944
    ...actual residence on the premises by the homestead claimants is not necessary in order to preserve the homestead rights therein." Foreman v. Maroney, 62 Tex. 723. A widow cannot by removing her minor children from the homestead lands impair the rights of the children to occupy it as a homest......
  • Borchers v. Borchers
    • United States
    • United States State Supreme Court of Missouri
    • 7 Febrero 1944
    ...actual residence on the premises by the homestead claimants is not necessary in order to preserve the homestead rights therein." Foreman v. Maroney, 62 Tex. 723. (6) A widow cannot by removing her minor children from the homestead lands impair the rights of the children to occupy it as a ho......
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