Hickman v. Hickman
| Decision Date | 22 November 1950 |
| Docket Number | No. A-2695,A-2695 |
| Citation | 234 S.W.2d 410,149 Tex. 439 |
| Parties | HICKMAN et al. v. HICKMAN. |
| Court | Texas Supreme Court |
E. M. Davis, Brownwood, Mark McGee, Fort Worth, for petitioners.
Gib Callaway, Brownwood, for respondent.
Hector H. Hickman died November 26, 1948, leaving as survivors his widow, Mrs. Hazel Hickman, and a daughter seven months old. His will gave all his property to his three brothers, Roy N., I. N. and Bernal B. Hickman, and named them as independent executors.
On January 31, 1949, the probate court appointed Mrs. Hickman and Bernal B. Hickman temporary administrators of the estate pending proceedings for probate of the will, which was being contested by Mrs. Hickman and the daughter.
On March 7, 1949, the will was probated and the brothers qualified as executors. Contestants appealed to the district court.
On April 22, 1949, Mrs. Hickman, for herself and as next friend for her daughter, filed in the administration proceedings an application to have set aside to her and the child a homestead of 200 acres and all the exempt property of the estate. The probate court dismissed this application for want of jurisdiction, and Mrs. Hickman appealed to the district court, which, after a hearing, adjudged to Mrs. Hickman and her daughter a described tract of 200 acres out of a tract of 917.2 acres, which was the separate property of the deceased, as a homestead during the lifetime of Mrs. Hickman or as long as she may elect so to use it or so long as the daughter's guardian, in the event of the death of Mrs. Hickman or her abandonment of the homestead, may be permitted under court orders so to use it. The court further found: (1) that at the time of Hickman's death there was on hand, as his separate property or as the community property of himself and Mrs. Hickman, a large amount of household and kitchen furniture and numerous implements of husbandry; and (2) 'that there were on hand five milk cows and their calves, * * * one 1946 International Pick-up which the court finds to be exempt property; * * * all wearing apparel and clothing of every kind, including two gentlemen's diamond rings; seven head of hogs; twenty head of goats, all of which items the court finds the applicants are entitled to have set aside to them as exempt property for their use and benefit.' He then found that some of these exempt articles of a value in excess of $500 were not then among the effects of the deceased, and decreed that Mrs. Hickman be paid $500 in lieu thereof, as provided by Arts. 3486 and 3487, R.C.S.1925. He found, also, that 'since the filing of this application in the County Court, asking that exemptions be set aside to them,' the administrators have sold the following exempt property: five cows and four calves for $1103, 20 goats for $90, 7 hogs for $419, a new tractor and attachments for $1125, an old tractor and attachments for $910, a combine for $1000, a 2-wheel trailer for $165, a cream separator for $45, bees for $30; and that Mrs. Hickman and her daughter are entitled to have the total of $4887 paid to them 'in the place and stead of said items.'
After modifying the trial court's judgment in three minor particulars not questioned here, the Court of Civil Appeals affirmed it. 228 S.W.2d 565.
The cause is here with Roy N. Hickman et al., the three brothers, as petitioners, and with Mrs. Hickman and her daughter as respondents.
Petitioners' first point complains of the judgment allowing respondents a money judgment for the exempt articles sold by consent of all parties. They assert that since the sales were voluntarily made by Mrs. Hickman, the money received is not exempt property.
There is no dispute that Mrs. Hickman and petitioners did agree to the sale on the theory that it would be for the benefit of all concerned; that it should be made by the two administractors without court order; and that the prices received would be considered fair and would not be contested. The testimony, however, is conflicting on what the agreement was as to the effect of the sale, so we must adopt that version which supports the trial court's judgment. It was that the parties 'agreed that the money received for the property would take the place of and be in lieu of the items sold and it would be without prejudice to the rights of anybody concerned.'
In that situation we see no merit in petitioners' contention. They were sui juris and were presumed to know that respondents were entitled to have the exempt property set aside to them for their use and benefit. Knowing that, they agreed that the items should be sold by the administrators and that the money realized would take their place 'without prejudice to the rights of anybody concerned', which certainly meant without prejudice to the right of Mrs. Hickman and the child to claim the use and benefit of the proceeds. If it did not mean that it meant nothing, from the standpoint of respondents. We see no reason why petitioners should not live up to their agreement. Cases like Whittenberg v. Lloyd, 49 Tex. 633 and Schneider v. Bray, 59 Tex. 668, cited by petitioners, are not contrary to our holding because in them the debtor voluntarily converted exempt property into non-exempt property but without his complaining creditor's participation or consent; so it was properly held that the nonexempt property was subject to execution to satisfy the creditor's judgment.
Petitioners next contend that if the trial court was correct in decreeing that the money is exempt, its use should have been limited to the lifetime of Mrs. Hickman and to the lifetime or minority of the child and that respondents...
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