Hirshfeld v. Brown

• Decision Date: 01 May 1895
• Citation: Hirshfeld v. Brown, 30 S.W. 962 (Tex. App. 1895)
• Parties: HIRSHFELD et al. v. BROWN.
• Court: Texas Court of Appeals

30 S.W. 962

HIRSHFELD et al. v. BROWN.

Court of Civil Appeals of Texas.

May 1, 1895.

Error from district court, Travis county; F. G. Morris, Judge.

Action by Henry Hirshfeld and others against Ella Brown, executrix. From a judgment for defendant, plaintiffs bring error. Affirmed.

This is an action by plaintiffs in error, Henry Hirshfeld et al., as creditors of Leander Brown, to set aside and vacate an order of the county court of Travis county, entered on February 8, 1890, in the matter of the estate of Leander Brown, setting aside to the defendant in error, Mrs. Ella Brown, his surviving wife, certain property and real estate in the city of Austin, as her homestead, and to subject the same to the payment of the debts of plaintiffs in error. In the county court, where this proceeding was instituted, demurrers were sustained to plaintiffs' action, and, upon appeal to the district court, judgment was there rendered for Mrs. Ella Brown.

John W. Phillips, for plaintiff in error M. A. Taylor. Osceola Archer, for plaintiffs in error Henry Hirshfeld, Lula A. and J. W. Blattner, Sallie F. Brown, Don Wilson, and Mrs. J. Snyder. Shelley & Hancock, for plaintiffs in error the State National Bank and City National Bank. D. W. Doom, for plaintiffs in error James W. Smith, E. L. Saunders, and J. C. Maxwell, executors of W. M. Saunders, deceased. Walton & Hill, for defendant in error.

FISHER, C. J.

The trial court found the material facts in the case, and, as our opinion in the case, we adopt the findings of fact of the trial court, and also its conclusions of law, as the findings of fact by this court, and as its conclusions of law:

"(1) That Leander Brown died testate and insolvent in Austin city, Texas, on the 4th day of May, 1889, having devised his property to his surviving wife, Ella Brown, whom he also made his executrix without bond. She qualified as such executrix on the 30th day of July, 1889, and has ever since remained, continued, and is now, such executrix. (2) That on the 23d day of February, 1888, the said Leander Brown and wife, Ella Brown, moved their household and kitchen furniture from their place of residence into the buildings situated on the east half of lot No. 7 and on the east half of lot No. 8, adjoining said east half of lot No. 7, in block No. 69 in the city of Austin, Texas, with the intention of making said property their homestead, and continued to reside on said east half of lot No. 7, and to use sleeping apartments on the east half of lot No. 8, for themselves, during the summer seasons, and a room thereon for, and which was occupied by, their domestic servant, and to use the water closets, and a place for keeping firewood for their home use, on said east half of lot No. 8, which uses of said east half of lot No. 8 in connection with the homestead, and for homestead purposes, were continued until the death of said Leander Brown, on the 4th day of May, 1889. (3) That, prior to the January term, 1890, of the county court of Travis county, in which the estate of said Brown was being administered, the plaintiffs had presented and obtained allowance and approval by said court of claims against said estate amounting in the aggregate to about $9,000; the claim of said Hirshfeld, one of the plaintiffs, thus approved, being a note for $1,476.70, dated January 27, 1889, due one day after date, bearing 12 per cent. interest per annum, and for 10 per cent. attorney's fees, which was executed by the said Leander Brown. That said claims have not been paid, and there is no property belonging to said estate, except the said property so used as aforesaid for the purposes of a homestead. (4) That at the time said property was designated as a homestead the same did exceed in value the sum of $5,000, without considering the improvements situated thereon; the said east half of lot No. 7 being then of the value of $5,000, without improvements, and the said east half of lot No. 8 being then of the value of $3,500. (5) That on February 5, 1890, the said Ella Brown filed her application in the county court of Travis county, praying that the said two half lots be set aside to her as the homestead of herself and husband at the time of his death, in which application she represented to the court, among other things, `that at the date of the death of decedent he and petitioner occupied, and had for a long time, to wit, many years, occupied and used as their homestead, and petitioner still occupies and uses as her homestead, the east half of lots seven and eight in block No. 69 in Austin city, Travis, Texas,' which statement was true, except as to the time said property had been used as a homestead; the property in question had not been occupied as a home for many years, but only for a few months more than one year. That said application was granted, and said property was, by order of said court, set aside to said Ella Brown, as the homestead of herself and late husband, on the 8th day of February, 1890, without actual notice to said creditors, or any of them, of the application, or order made thereon. (6) That the plaintiff H. Hirshfeld learned of the making of said order some time during the year in which the same was made, and employed an attorney at law to look after his claim in said court; but it does not appear whether he heard of said order before the term of the court at which it was made expired, nor does it appear from the evidence when the other creditors learned of the existence of said order. (7) That on August 20, 1889, when said Hirshfeld presented his claim for approval, the attorney for the executrix, in her presence, expressed the opinion that said estate was solvent and would pay out its indebtedness, in which opinion the said executrix acquiesced, and on several other occasions — dates not stated — the said attorney expressed to said Hirshfeld the same opinion, and on one occasion reported to him her purpose to sell said property and pay the debts of said estate, naming her price thereon at $17,000. (8) This proceeding was instituted in the county court of Travis county on December 22,...