Green v. Crow

• Decision Date: 01 January 1856
• Parties: ALEXANDER P. GREEN and others v. WILLIAM H. CROW, Adm'r.
• Court: Texas Supreme Court

17 Tex. 180

ALEXANDER P. GREEN and others

v.WILLIAM H. CROW, Adm'r.

Supreme Court of Texas.

1856.

The witness, for the want of whose testimony the continuance was sought, resided two hundred miles from the court house, and the commission not having issued until the fifth of March, the trial being on the second of April, there was not such diligence as would entitle the application to favor.

The affidavit (for a continuance) does not state positively that the witness would testify to certain facts, but that the affiant was told by reputable persons the witness would so testify.

The fact to be proved, viz.: the place of domicile of the deceased, was one which most probably would be known to many in the town of Jefferson and vicinity, where the deceased had formerly resided, and the refusal of the continuance would not be likely to operate to the prejudice of the plaintiffs. On the trial, there was testimony to the fact from five or six witnesses.

Further, this was the third application for a continuance, and the discretion exercised by the court on the third and succeeding applications, over the question of continuance, is not, as a general rule, the subject of revision; at least this is not such a case of such flagrant injustice and wrong as to induce the interposition of an appellate court. [4 Tex. 22;18 Tex. 713;30 Tex. 27.]

Under the law of 1848, the homestead or substituted allowance is not to be designated out of every estate, for the widow and children, but only in cases where the estate is insolvent; or, if set apart from a solvent estate, no permanent interest or estate can enure to the beneficiaries, as the whole estate, including the portion for the widow and children, is distributable among the heirs and distributees.

The payment and division of the allowance to widow and children of a deceased person, where the property of the estate of such person, exclusive of the allowance, is insufficient to pay the debts, is final and absolute, without remainder or ultimate liability to creditors, or others interested in the estate.

The right of the widow and children of a deceased person, whose estate is insolvent, to the homestead or substituted allowance, depends on the question whether the domicile of the deceased was in this state at the time of his death, and is not affected by the fact that the widow and children may have abandoned the state, or may intend to abandon it, as soon as the homestead or substituted allowance is assigned to them. [14 Tex. 463;18 Tex. 102;24 Tex. 270.]

It seems that the homestead may be assigned to the widow of a deceased person on application of the administrator.

Taking this case in connection with Edmiston v. Long, ante, 135, quære,whether the right of a widow to have the homestead set apart to her, is assignable before the order of court has been made so setting it apart. [[[[[ Ante, 135.]

Appeal from Cass. Tried below before the Hon. William S. Todd.

The application for a continuance stated that on the 11th day of February last, interrogatories were filed in the clerk's office of this court to Francis A. Sayre, a resident of Dallas county, Texas, a distance of about two hundred miles, and forwarded for execution about the 5th of March; that affiant believed the testimony of said Sayre to be material to plaintiff's cause, from the fact that he was living with defendant's intestate before and at the time said intestate left Jefferson for Florida, and had charge of his drug store, and was in his confidence; that affiant was told by respectable persons that said Sayre would testify that said intestate had previous to his death moved to and permanently settled at Key West, in Florida, in order to improve his health; that plaintiffs expected to prove the same facts by one George Burritt, but that up to this time his residence could not be ascertained, and that as soon as the materiality of said Sayre's testimony was known steps were taken to procure the same by filing interrogatories to him as before stated, and forwarding a commission; that affiant knew of no other person by whom the same facts could be proved, and that the application was not made for delay, but that justice might be done. The appeal from the county court was in February, 1855. The application for continuance was at the spring term, 1856, April 2, and was their third application.

Mrs. Pugh was not a party to the proceeding, and exception was made by the creditors on that ground, but it did not appear that the objection was called to the attention of the court.

T. J. & J. H. Rogers, for appellants, cited Hipp v. Huchett, 4 Tex. 20, as to the refusal of the continuance; and Trawick v. Harris, 8 Tex. 312, and The State v. Frost, 4 Harring, 558, on the merits.

T. J. Jennings, for appellee.

HEMPHILL, CH. J.

The appellee, as administrator of Thos. F. Pugh, deceased, moved the county court to set apart to the widow of the intestate (who died insolvent and without a child) the one year's maintenance, to which she was entitled under art. 1153 (Hart. Dig.), and also all such property as may be exempted from forced sale under the constitution and laws of this state, and to which she was entitled under art. 1154. The appellants appeared and objected to the application; but the court overruled their objections, and ordered the year's maintenance, and also decreed the homestead of the deceased, consisting of a house and three lots in the town of Jefferson, to be set apart to the widow, her heirs, administrators and assigns, in fee simple, forever. The appellants, who are creditors, appealed to the district court, and the judgment of the county court having been in effect sustained, the cause was appealed to this court.

The first objection urged by the appellants, in their brief, is the supposed error in overruling the plaintiff's application for a continuance. In answer to this objection, it may be said in the first place, that the witness (for the want of whose testimony the continuance was sought) resided two hundred miles from the court house, and that the commission not having issued until the 5th of March, the trial being on the 2d of April, there was not such diligence as would entitle the application to favor. The affidavit does not state positively that the witness would testify to certain facts, but that the affiant was told by reputable persons the witness would so testify. The fact to be proven, viz.: the place of domicile of the deceased, was one which most probably would be known to many in the town of Jefferson and vicinity, where the deceased had formerly resided, and the refusal of the continuance would not be likely to operate to the prejudice of the plaintiffs. On the trial, there was testimony to the fact from five or six witnesses. Further, this was the third application for a continuance, and the discretion exercised by the court on the third and succeeding applications, over the question of continuance, is not, as a general rule, the subject of revision; at least this is not a case of such flagrant injustice and wrong as to induce the interposition of an appellate court. (4 Tex. 22.)

The second objection was error in not allowing plaintiff to prove on cross examination, by witness Speake, that the said widow resided at her father's house in the state of Alabama, from and after intestate's death, for nine or ten months, as a home, and that some person wrote to her from Jefferson, stating that unless she would visit Jefferson for the purpose of claiming said property as a homestead, she would lose the same; that she came in accordance with said letter, and only intended to remain long enough to get said property by law, then to sell the same and to leave the state and to go to her father's again in Alabama, and there reside permanently.

Before considering whether there was error in excluding this testimony, I will state that the great question in the case was, as to the place of the domicile of the deceased at the time of his death, whether in the town of Jefferson, Texas, or at Key West, Florida. This was the only point which the court below deemed of sufficient importance to require instructions to the jury. The evidence was that the deceased had been in bad health for years; that he traveled some summers for the benefit of his health; that finally he repaired to Key West, accompanied by his wife and a child that afterwards died. There was a great preponderance of evidence that he intended to return, if he was restored to health, though there was proof of statements from the deceased to the contrary. He died some time after he reached Key West. After his death, his wife went to her father's in Alabama, and remained there for some months, until she returned to Texas.

It may be further stated, also, that the court, on the supposition that the domicile of the deceased was in Jefferson, instructed the jury to the effect, that although Mrs. Pugh may have been absent from the state, yet she was entitled to all the rights of a surviving wife, under the constitution and laws of the state, and that the probate court, in the assignment of property made for her benefit, acted in the rightful discharge of its duty.

Admitting (and such is the effect of the evidence and the verdict of the jury) that the domicile of the deceased was in the town of Jefferson, has the widow lost her right to the homestead by her absence, under the circumstances,...