George v. Taylor

• Decision Date: 23 November 1956
• Docket Number: No. 15776,15776
• Citation: 296 S.W.2d 620
• Parties: Fred T. GEORGE, Executor, Appellant, v. Fred TAYLOR et al., Appellees.
• Court: Texas Court of Appeals

Page 620

296 S.W.2d 620

Fred T. GEORGE, Executor, Appellant, v. Fred TAYLOR et al., Appellees.

No. 15776.

Court of Civil Appeals of Texas, Fort Worth.

Nov. 23, 1956.

Rehearing Denied Dec. 21, 1956.

Smoot & Smoot and Chas. H. Smoot, Wichita Falls, for appellant.

James E. Handy, Wichita Falls, for appellees.

MASSEY, Chief Justice.

H. F. Taylor died intestate in 1951. His wife, Fannie M. Taylor, died testate in 1955. Both deceased persons had children surviving them, but all of said children were born of previous marriages and there was no issue from the marriage of the aforesaid husband and wife.

When Fannie Taylor died the only property of which her estate consisted was an undivided one-half interest in and to a certain house and lot in Wichita Falls, Texas, the furnishings therein contained, and $4 in cash. Except for the insignificant amount in cash, the property consisted of said deceased's homestead, which was the community property of said deceased and her husband prior to date of the latter's death in 1951. She had continued to use the said property as her homestead up until the time she died.

In the latter part 1955 the Executor obtained leave of the Probate Court of Wichita County to sell the aforesaid property and convert the same to cash. Such a sale was made (clearly with concurrence on the part of the heirs of H. F. Taylor), leaving the proceeds from said sale to be partitioned and apportioned between said heirs and the estate of Fannie Taylor. It was the contention of Fred T. George, Executor of the Estate of Fannie Taylor, that the 50% of the proceeds from the sale belonging to the heirs of H. F. Taylor should be taxable with a part of the debts of Fannie Taylor,-in particular with the funeral expenses and expenses incident to the last illness of Fannie Taylor. The Judge of the Probate Court disagreed and entered judgment finding that said 50% was not subject to any of said debts. The Executor for the Estate of Fannie Taylor excepted and gave notice of appeal to the District Court.

Upon trial de novo in the District Court of Wichita County, judgment to an identical effect was entered. From this judgment the Executor has perfected the appeal.

On the appeal so presented the Executor seeks reversal of the judgment of the District Court, and the rendition of a judgment by the Court of Civil Appeals charging what he terms 'the community estate of H. F. and Fannie M. Taylor' with the costs of administration and with the expenses of last illness and funeral expenses of Fannie Taylor. In other words, the Executor wants one-half of all said costs and expenses taxed against the heirs of H. F. Taylor, so that the Estate will be liable for only one-half, rather than for all of said costs and expenses as provided by the judgment of the District Court.

The Executor predicates his contention upon the hereinafter emphasized part of Section 45 of the Probate Code, V.A.T.S (formerly Art. 2578), the whole of which reads as follows: 'Community Estate. Upon the dissolution of the marriage relation by death, all property belonging to the community estate of the husband and wife shall go to the survivor, if there be no child or children of the deceased or their descendants; but if there be a child or children of the deceased, or descendants of such child or children, then the survivor shall be entitled to one-half of said property, and the other half shall pass to such child or children, or their descendants. But such descendants shall inherit only such portion of said property as the parent through whom they inherit would be entitled to if alive. In every case, the community estate passes charged with the debts against it.'

As result of said language, so emphasized, the Executor contends that the interest of the heirs of the first deceased spouse is limited to that which would have been their ancestor's if he were alive rather than dead, and that since the property is community property which passes charged with the debts against it, hence the property rights vested in such heirs rested in trust (in the Executor) until partition is applied for and actually made, and then passed burdened by a pro rata debt obligation.

(1, 2) We cannot agree with the Executor. It must be remembered that the property in question was not community property after the death of H. F. Taylor. Property of that character depends upon several elements, an indispensable element being its joint ownership by a husband and wife. Where the relationship of husband and wife does not exist between...