Grant v. Marshall, 3193

• Decision Date: 14 October 1954
• Docket Number: No. 3193,3193
• Citation: 272 S.W.2d 580
• Parties: George GRANT et al., Appellants, v. John A. MARSHALL et ux., Appellees.
• Court: Texas Court of Appeals

Page 580

272 S.W.2d 580

George GRANT et al., Appellants, v. John A. MARSHALL et ux., Appellees.

No. 3193.

Court of Civil Appeals of Texas, Waco.

Oct. 14, 1954.

Rehearing Denied Nov. 24, 1954.

R. A. Kilpatrick, Cleburne, Melvin F. Adler, Ft. Worth, for appellants.

John A. James, Jr., and Roy Anderson, Cleburne, for appellees.

HALE, Justice.

John A. Marshall and wife, Mattie Marshall, appellees herein, brought this action against appellants, George Grant, individually and as independent executor of the estate of Florence Grant, deceased, and the four adult sons and married daughters of A. J. Grant, deceased, by his wife, Florence Grant. The objects of the suit were to subject the proceeds derived from the sale of the community homestead of A. J. Grant and wife, florence Grant, to the payment of community debts alleged to be due to appellees and to establish the claim of Mattie Marshall as an heir at law and child by adoption of A. J. Grant and Florence Grant.

The case was tried before a jury. Based upon the findings of the jury and the undisputed evidence, the trial court rendered judgment ordering the executor of the estate of Florence Grant to pay to appellees out of the funds received from the voluntary sale by the testatrix of the community homestead of herself and her deceased husband the sum of (1) $3917.20 in payment of community debts owing to appellees, (2) $502.40 which Mattie Marshall is entitled to receive as an heir at law and adopted child of A. J. Grant, such sum being 1/10 of the balance derived from the sale of the community homestead after the payment of all community debts, and (3) $10 bequeathed to Mattie Marshall by the terms of the probated will of Florence Grant.

Appellants predicate their appeal upon two points of error as follows: 'Point 1: The Court erred in subjecting to community debts the proceeds of sale of the community homestead by the widow and adult children, even though at her death she left no constituent member of the family. Point 2: The court erred in holding that Plaintiff was entitled to inherit from A. J. Grant, as his adopted daughter, for the reason that the attempted adoption by filing instrument acknowledged as a deed was a nullity, having been made subsequent to enactment of the law requiring a district court proceeding for a valid adoption.'

The evidence shows that in 1928 A. J. Grant acquired 157 acres of land in Johnson County which became the community property of himself and his wife, Florence Grant, this tract of land being hereafter referred to as the Grant homestead. On December 28, 1951, A. J. Grant died intestate, leaving no property other than his 1/2 interest in the homestead, and no constituent member of his family other than his surviving widow. Under date of October 15, 1952, Florence Grant conveyed the Grant homestead, being joined in the deed of conveyance by all the heirs at law of A. J. Grant, deceased, to F. E. Gardner for a recited consideration of $13,876.20, the sum of $11,849.35 being paid in cash and the balance thereof being subject to the payment of an unpaid loan held by the Federal Land Bank of Houston and to certain delinquent taxes, the same being secured by a lien on the premises. Florence Grant died on December 4, 1952, leaving a will dated June 9, 1952, which was duly admitted to probate, reading as follows: 'This is my will and testimony. After all debts are settled I want this Estate to be equally divided with my four children Claude Eula Horace and Stella and I want Mattie Marshall to have ten dollars for her share of said Estate. Also I hereby appoint George Grant Independent Executor of this will without bond.'

The evidence further shows that a part of the proceeds from the sale of the Grant homestead were used to pay off all of the community debts of A. J. Grant and Florence Grant except the indebtedness due to appellees and that, at the time of trial in the court below on October 21, 1953, the balance derived from the sale in the sum of $8,941.25 was on deposit in a Cleburne bank in the name of George Grant, the executor of the will and estate of Florence Grant.

The claims of appellees as creditors of the estate of Florence Grant are based upon a series of promissory notes executed by A. J. Grant and Florence Grant payable to appellees, and the value of nursing services rendered by Mattie Marshall in behalf of A. J. Grant and Florence Grant during the declining years and last illness of each. Although appellants contested the validity of the notes upon which the claims were based on the ground that they were without any consideration, the jury found against such contentions and further found the reasonable value of the nursing services rendered by Mattie Marshall, that A. J. Grant and Florence Grant each intended to compensate her, and that Mattie Marshall intended to be reasonably compensated, for such services. Appellants do not question the sufficiency of the evidence to sustain the findings of the jury, but they say under the first point in their brief that the trial court erred in ordering the executor of the estate of Florence Grant to pay to appellees from the funds in his possession as such executor the amount of the claims as established by appellees.

We cannot agree with the contentions urged by appellants under their first point of error. The evidence shows that the Grant homestead was sold by Florence Grant, with the knowledge and consent of appellants and Mattie Marshall, in order to acquire funds with which to pay off and discharge all of the community debts due and owing by the community estate of herself and her deceased husband, A. J. Grant. The law is well settled, we think, that the surviving wife has the power and authority under the Constitution and statutes of this State to sell the community homestead of herself and her deceased husband in order to secure funds with which to discharge their ordinary community debts. Ladd v. Farrar, Tex., 17 S.W. 55; Morris v. Williams, Tex.Civ.App., 92 S.W.2d 541 (er. ref.); Hames v. Stroud, 51 Tex.Civ.App. 562, 112 S.W. 775 (er. ref.); Stone v. Jackson, 109 Tex. 385, 210 S.W. 953; Crawford v. Gibson, Tex.Civ.App., 203 S.W. 375 (er. ref.); Griffin v. Stanolind Oil & Gas Co., Tex.Com.App. 133 Tex. 45, 125 S.W.2d 545; Fidelity Union Ins. Co. v. Hutchins, 134 Tex. 268, 133 S.W.2d 105; Davis v. Magnolia Petroleum Co., Tex.Com.App., 134 Tex. 201, 134 S.W.2d 1042.

The cases cited in the brief of appellants, such as American Bonding Co. v. Logan, 106 Tex. 306, 166 S.W. 1132, Hoefling v. Hoefling, 106 Tex. 350, 167 S.W. 210 and Butler v. Summers, 151 Tex. 618, 253 S.W.2d 418, did not involve the right of a surviving spouse to sell the community homestead for the purpose of paying community debts, and hence we do not think they are of controlling effect in their application to the facts of the case before us. It is significant, we believe, that the Court expressly states in the leading case of American Bonding Co. v. Logan, supra (106 Tex. 306, 166 S.W. 1134), that the certified question upon which its opinion and holding is based 'involves no issue relating to * * * taxes, * * * or to the right of a surviving spouse to sell the homestead property for the purpose of paying community debts'.

Since Florence Grant voluntarily sold the 157 acres of land belonging to the community estate of herself and her deceased husband for the purpose of paying their community debts, she thereby abandoned the further use of such premises as a homestead, as she had a right to do, and it is quite clear from the evidence that by reason of the infirmities of her age, she had no intention whatsoever of using any part of the proceeds derived...