Hoefling v. Hoefling

• Court: Texas Supreme Court
• Writing for the Court: Hawkins
• Citation: Hoefling v. Hoefling, 167 S.W. 210, 106 Tex. 350 (Tex. 1914)
• Decision Date: 28 May 1914
• Docket Number: (No. 2404.)
• Parties: HOEFLING et al. v. HOEFLING et al.

167 S.W. 210

HOEFLING et al. v. HOEFLING et al.

(No. 2404.)

Supreme Court of Texas.

May 28, 1914.

Error to Court of Civil Appeals, Fourth Supreme Judicial District.

Suit for partition by L. Thulemeyer against Dorothea Hoefling and others. A judgment in favor of the defendants Mary Hoefling and others was reversed by the Court of Civil Appeals, and they bring error. Affirmed.

Henry E. Vernor, Clark & Bliss, and Denman, Franklin & McGown, all of San Antonio, for plaintiffs in error.

HAWKINS, J.

William Hoefling, Sr., hereinafter called decedent, and his wife, Dorothea, owned lot 9 in block 16, city block 432, in San Antonio, as community property, and made their home thereon from a date prior to September 17, 1895, until he died in November, 1898. Decedent left surviving him his said wife, who qualified as administratrix of his estate, and their three children, Rudolph, Emma, who married Wolfe, and Henry, who conveyed to plaintiff in error, L. Thulemeyer, an undivided one-eighth interest in said lot; also four grandchildren, W. R., Daisy, who married Voight, G. A., and Willie, children of another son, William Hoefling, Jr., whose death preceded that of decedent; also Mary Hoefling, who was the widow of said deceased son and mother of said grandchildren. By order of the probate court said lot 9 was set apart as a homestead to decedent's widow; but she subsequently abandoned it prior to the institution of this suit.

William Hoefling, Jr., had insured his own life for the benefit of his said wife, Mary, and after his death she collected thereon $3,500, which she loaned to her father-in-law, William Hoefling, Sr., on September 17, 1895, taking his interest-bearing note therefor, in consideration of which loan he and his said wife on that day executed, duly acknowledged in the manner required by law for conveyance of real estate, and delivered to said Mary Hoefling, a written instrument which recited said loan and note, and continued thus:

"Now, therefore, to secure the payment of said note, and in event of failure to pay when due, or in event of the death of the said William Hoefling, then, in such events, the said Mary Hoefling shall have, and we do hereby grant to her, a $3,500 interest in our joint estate of which we may be possessed at such time, irrespective of her natural heirship or that of any others," etc.

A portion of that debt remains unpaid.

Said note and written instrument were duly proved up, allowed by the administratrix, and approved by the probate court, as a third-class claim against the estate of decedent, for $3,500, with interest, and, for payment thereof, that court decreed a foreclosure of lien "upon all the property of said estate." Mary Hoefling transferred one-third of said claim to Vernor, who transferred his interest in said claim to D. Sullivan & Co., a firm composed of D. Sullivan and W. C. Sullivan.

Having acquired Henry Hoefling's undivided one-eighth interest in said lot 9, L. Thulemeyer brought this suit for partition thereof, and for an accounting for rents thereon, and distribution thereof. The defendants were said Dorothea Hoefling, a widow, Rudolph Hoefling, Emma Wolfe and her husband, Bert V. Wolfe, Mary Hoefling, a widow, W. R. Hoefling, Daisy Voight and her husband, Willie Hoefling, a minor, and H. E. Vernor, D. Sullivan, and W. C. Sullivan.

Mary Hoefling answered, alleging the foregoing facts relating to her said loan to William Hoefling, Sr., and said note and written instrument of September 17, 1895; that, after Dorothea Hoefling qualified as such administratrix, she had represented that there was ample property, other than said lot 9, to pay off said debt, and induced said Mary Hoefling to prove up her said claim against decedent's estate; that said administratrix proposed to her that, if she would allow her to keep $500 out of $1,580, which said administratrix had collected for said estate, the latter would recognize her interest in the property in controversy to the extent of the balance of the former's said claim, which offer she accepted, whereby she became the owner of an undivided 121/370 interest in said property; and that she had assigned and conveyed an undivided one-third interest in and to her said claim, right and title, and that he had assigned and conveyed same to said D. Sullivan & Co.; whereupon she prayed for judgment against all the other parties for her said interest in said property, and for general relief.

Dorothea Hoefling, Emma Wolfe and her husband, and Rudolph Hoefling defended upon the grounds that said claim of Mary Hoefling against said estate had been so allowed, and said decree of the probate court concerning it entered, and that the property in controversy was not subject to partition because it was the homestead of Dorothea Hoefling, and had been so set apart to her; wherefore the matter was res adjudicata. The answer of Vernor and that of the Sullivans adopted said answer of Mary Hoefling, and prayed that their respective interests aforesaid be protected.

The jury, to whom the cause was submitted upon only one special issue, found that Dorothea Hoefling had abandoned said lot 9 as homestead; whereupon the trial court entered a decree that said lot 9 be sold to satisfy said claim of Mary Hoefling, amounting to $5,712.45, and that the balance, if any, be distributed as follows: To Dorothea Hoefling one-half, and to Emma Wolfe and L. Thulemeyer each one-eighth, to Daisy Voight, W. R. Hoefling, G. A. Hoefling, and Willie Hoefling each one thirty-second of such balance; that Mary Hoefling now owns two-thirds of her said claim; that D. Sullivan & Co. hold the remaining third of said claim for any debt which said Vernor may owe them; and that two-thirds of the amount of said claim be paid over to Mary Hoefling, and the other third to D. Sullivan & Co. for the purposes stated. From said judgment, Dorothea Hoefling, Emma Wolfe and her husband, and Rudolph Hoefling appealed, as against all the other parties.

The Court of Civil Appeals held, substantially, that said written instrument of date September 17, 1895, was intended merely to constitute a lien to secure the note therein mentioned, and, inasmuch as said lot 9, therein described, was at that time the homestead of William Hoefling, Sr., and his said wife, the makers of that instrument, such lien could not apply to said lot 9, but, as to it, was inhibited by the Constitution of Texas; that, under the facts and the Constitution and statutes and decisions of this state, said lot 9 passed to decedent's heirs, exempt from his debts, whether his estate was solvent or not, and so remained; that there was ample evidence to support the jury's finding; and that decedent's widow had abandoned said homestead, but that, as to decedent's creditors, such abandonment was wholly immaterial, whether decedent's estate was solvent or not, because, "when William Hoefling, Sr., died, the homestead descended and vested in his widow and children, free of any claims of any kind against his estate. It passed forever beyond the reach of creditors, and the loss of its homestead character could not instill life into an invalid lien, whether the same was evidenced by mortgage or other instrument, or by a judgment" — and that, if plaintiffs in error did not so contend, "they are in no better position when they claim that a creditor's lien, which had not attached to the homestead before, arose when the abandonment took place," and accordingly reversed said judgment of the district court in favor of Mary Hoefling, and decreed that she take nothing by her cross-action, that said lot 9 be partitioned, one half to Dorothea, and the other half to said children and grandchildren of decedent, and L. Thulemeyer, who bought a child's share, in the proportions indicated in said judgment of the district court, and that said property be sold for such partition, and the proceeds distributed among said owners according to their said respective shares.

Mary Hoefling and those claiming under her, as stated, alone applied for a writ of error, which was granted. They complain, first, of the action of the Court of Civil Appeals in treating the estate of said decedent as insolvent, and, secondly, of its holding that, whether said estate was solvent or insolvent, the homestead property at his death descended to and vested in his heirs, exempt from his debts, and forever beyond the reach of his creditors, and that consequently, upon abandonment of the homestead by the widow, plaintiffs in error, as creditors of his estate, had no right to subject said property to payment of their said claim. In support of their said first ground of complaint, plaintiffs in error point out the facts that no issue as to solvency or insolvency of the estate was pleaded or submitted to the jury, and contend that no such issue was made by the evidence. As to that entire phase of this case, we deem it sufficient to say this: It is obvious that, if the Court of Civil Appeals be correct in its view that it is wholly immaterial whether said homestead was solvent or insolvent, its action in treating the estate as insolvent resulted in no practical injury to plaintiffs in error, so, in testing their rights in the premises, we will give them full benefit of their contention upon that point, and will consider their said second ground of error upon the assumption that said estate was in fact solvent.

Unquestionably, under our present Constitution and statutes and the decisions of this court, whenever the head of a family dies intestate, leaving surviving him one or more constituents of the family, such as a widow, or a minor child, or an unmarried daughter remaining with the family, and his estate is insolvent, his homestead property, whether it be set apart by the probate court for the use and benefit of such surviving constituent or constituents of the family or not, descends and vests in all the heirs of such decedent, in accordance with the...