Hall v. Fields

• Decision Date: 23 June 1891
• Citation: 17 S.W. 82
• Parties: HALL <I>et al.</I> v. FIELDS.
• Court: Texas Supreme Court

17 S.W. 82

HALL et al. v. FIELDS.

Supreme Court of Texas.

June 23, 1891.

Commissioners' decision. Section B. Appeal from district court, Grayson county; A. C. TURNER, Judge.

Petition by Jennie Hall, guardian of R. E. L. Hall and Elma Hall, minor heirs of E. C. Hall, deceased, to have the deceased's homestead set apart for their use. Petition denied. They appeal. Reversed.

G. W. Pascoe, C. H. Smith, and Woods & Brown, for appellants. Hare, Edmundson & Hare, for appellee.

GARRETT, P. J.

This suit is between the appellants, who are Jennie Hall and her wards, R. E. L. Hall and Elma Hall, the minor children of E. C. Hall, deceased, and J. W. Fields, the appellee. The guardian seeks to have set apart, for the use and occupation of said minors, 200 acres of land belonging to the estate of the deceased, and occupied by him as a homestead at his death. Fields resists the application, claiming that he has purchased the land from the executor of Hall under an order of the county court made in pursuance of the will of deceased, and that the minors are not entitled to any homestead rights in said land. The county court granted the application, and set the land apart for the use of said minors as a homestead. On appeal to the district court, that court denied the application of Mrs. Hall, set aside the judgment of the county court, and directed that its judgment be certified to the county court for observance. There is no statement of facts in the record, but at the request of the appellants the judge filed his conclusions of fact and of law. It appears from the findings of the judge and the pleadings that Hall died April 8, 1886, possessed of a tract of 320 acres of land, which was his separate property, and some personal property. He left surviving him two minor children, the appellants R. E. L. and Elma Hall. The mother of appellants is their guardian. She and the deceased, E. C. Hall, were divorced at the suit of the husband, by a decree of the district court of Grayson county, November 7, 1885. At the time of the divorce Hall occupied and resided on said tract of land as a homestead with his wife and their said children. Prior thereto, Hall and his wife, in contemplation of a separation, had agreed on a division of the property, by which 80 acres of the land was to be set apart to Mrs. Hall for life, Hall agreeing to build her a house thereon, and certain personal property was delivered to Mrs. Hall. The custody of the children was left to the decision of the court. The decree of divorce adopted the agreed division of property, and awarded the custody of the children to their mother. Hall continued to reside on and occupy as a homestead that portion of the land retained by him, until his death. His divorced wife and their children first resided on the 80 acres set apart to her for life, but soon after the divorce she bought a homestead in Sherman, to which she moved, and was residing on and occupying it with said minor children at the time of Hall's death and the judgment in this suit.

Hall left a will, which was duly probated. He named an executor, who appears to have acted under the direction of the county court. The will directed the sale of the entire 320 acres of land for one-half in cash, and the balance on a credit of 12 months. One-sixth of six-sevenths of the proceeds of the sale were to be expended in the education of the minor appellants, and two-fifths of the balance of the estate was devised to the children of Hall by a former marriage. The will has not anywhere been copied in the record, and what other disposition was made is not shown. The appellee, John W. Fields, bought the 320 acres of land at a sale made by the executor at public outcry, September 13, 1886, which was approved by the county court at some term early in 1887, and a deed was executed to him for the land by the executor. Appellant Jennie Hall, who had been appointed by the county court as guardian of the minors, R. E. L. Hall and Elma Hall, in behalf of said minors filed an application in the county court in said estate September 11, 1886, to have the homestead set apart for the use and occupation of said minors. Fields filed objections to said application in the county court June 27, 1887, protesting against the allowance, because (1) Hall and his wife had been divorced, and the custody of the minor children had been awarded to said Jennie Hall; (2) an agreement had been made as to a division of the property between Hall and wife, which was alleged to be a provision for the support and maintenance of said minors by Mrs. Hall; (3) all the property was the separate property of Hall, including said homestead; and (4) Hall had left a will which provided for the sale of the 200 acres, and that it had been sold by the executor under an order of the county court, and purchased by said Fields, and the court had approved the sale, and ordered a conveyance to him of the land, which had been executed, and said sale had become a judgment of a court of competent jurisdiction, not subject to impeachment except in a direct proceeding. Afterwards, in the district court, on October 14, 1887, Hall filed supplemental objections, as they were termed, showing more fully the probate of the will, and that the property had been sold under the direction and provisions of said will by the executor; that neither the will nor any of the provisions thereof nor directions contained therein had ever been annulled or suspended, and no attempt had ever been made to do so, and it was in full force in its entirety; and that the whole of the property had been disposed of as provided by the will. When Fields purchased the land, he did so with notice that Mrs. Hall, who was the guardian of the minor appellants, had applied to the county court to have the homestead set apart for the children. The conclusions of law filed by the judge were as follows: "(1) That when the minors, R. E. Lee Hall and Elma Hall, were taken from the care, custody, and control of E. C. Hall by the judgment of the district court in the divorce proceeding said court having full jurisdiction in the matter, they then ceased to be constituents of the family of E. C. Hall, and had no such interest in their father's estate by way of a homestead claim as would interfere with or prevent their said father from disposing of his property by will as he might choose. (2) That said minors' homestead claim attached to the home of their mother in whose `care, custody, and exclusive' control they have been placed by lawful authority. (3) The court concludes from all the facts in the case that the law is for the plaintiff, John W. Fields, and so finds in his favor, and denies the claim of the defendant." Counsel for appellants took a bill of exceptions to the judge's conclusions, and has assigned errors in the judgment, and seeks a reversal thereof. It is not deemed necessary to set out and notice in detail the several assignments of error, as they sufficiently present the questions that are presented by the facts. The application of appellants to have the homestead set apart to them was denied because the court was of the opinion that the minors were not constituents of the family of E. C. Hall, so as to prevent him from disposing of his property by will as he might choose, and that their homestead claim attached to the home of their mother.

Mrs. Hall, by reason of the divorce from her husband, could not assert and did not assert any claim for herself to the homestead of her late husband, E. C. Hall. Duke v. Reed, 64 Tex. 713; Trawick v. Harris, 8 Tex. 312; Earle v. Earle, 9 Tex. 630; Sears v. Sears, 45 Tex. 557. She was the duly-constituted guardian of the minors, R. E. Lee Hall and Elma Hall, the children of herself and her said husband, and in this capacity made the application to the county court in the estate of said E. C. Hall, administration of which was therein pending, to have the homestead which he was occupying at his death set apart for the use and occupation of said minors. This proceeding was proper. The minors could have asserted no right to the homestead except through a guardian.

The land was the homestead of E. C. Hall, not only by use and occupation thereof as such, but he was protected therein by exemption from forced sale. A divorced husband living upon land occupied and used by him as a homestead at the time of the divorce, and set apart to him in the division of the property between himself and his wife when the marriage was dissolved, may claim its exemption from forced sale as the head of a family, although the children do not reside with him, and no matter whose fault occasioned the divorce. Zapp v. Strohmeyer, 75 Tex. 638, 13 S. W. Rep. 9. Cases have arisen for determination as to who are constituents of a family when persons are found living together not bound by near ties of relationship, and rules have been prescribed for determining whether or not a particular aggregation of individuals constitutes a family. In Roco v. Green, 50 Tex. 488, the general rules deduced from the authorities are enunciated. From the relationship of minor children to their father we can have no doubt, under our present constitution and laws, that it is not necessary that the children should reside with the father at the time of his death to entitle them to a right in his homestead. It is not so required by the constitution. Const. art. 16, § 52.¹ By the Revised Statutes, (article 1993,) the exempt property must be set apart "for the use and benefit of the widow and minor children, and unmarried daughters remaining with the family of the deceased." Adult children, including unmarried daughters who do not remain with the family of the deceased, do not share in the exemptions; but the widow and minor children do, although they may not be with the deceased. That the children were awarded by the court, in the divorce proceeding, to the custody of their mother, can and ought to make no difference. The...