Hoffman v. Neuhaus

• Decision Date: 31 January 1868
• Citation: Hoffman v. Neuhaus, 30 Tex. 633 (Tex. 1868)
• Parties: ELIZABETH MILLER HOFFMAN AND HUSBAND v. ANNA NEUHAUS ET AL.
• Court: Texas Supreme Court

30 Tex. 633

ELIZABETH MILLER HOFFMAN AND HUSBAND

v.ANNA NEUHAUS ET AL.

Supreme Court of Texas.

January, 1868.

The constitution of the state, and the laws made in pursuance thereof, after defining a homestead, secure it to the family. Pas. Dig. p. 65, § 22, note 198; art. 1305, note 481; art. 3928, and 2d ed. art. 3802 a.

Where the children arrive at the age of majority, and especially where they leave the family of their father and mother, and become a separate family, they are not any longer a part of the old family; and they cannot claim a partition of the homestead as against the mother and minor children.

As long as there is a family having a head, and as long as this head of a family occupies the homestead, it cannot be interfered with for any purpose.

The word “ children,” in the 45th section of the act relating to estates, must be construed to mean minor children, and the homestead is for the minor children and the head of the family, whether that head consist of father or mother or guardian. Pas. Dig. art. 1305, note 481.

The reservation is against heirs and creditors.

ERROR from Colorado. The case was tried before Hon. GEORGE W. SMITH, one of the district judges.

This suit was brought by Anna Neuhaus and Frederica Neuman, children of J. H. Miller, joined by their husbands, deceased, in the county court of Colorado county, against their mother, Elizabeth Miller Hoffman, for the partition of the homestead of their said father, whose estate was insolvent, and which homestead had been set apart by the county court of said county for the use and benefit of the widow and children of the said Miller. The mother, who had intermarried with Hoffman, pleaded to the jurisdiction of the court, and filed a general demurrer. Upon these the cause was dismissed in the county court, and plaintiffs appealed to the district court. A jury was waived, and the cause submitted to the judge, who reversed the decision of the lower court, and entered up a decree partitioning said homestead between the widow and the children of said Miller, giving half to the mother and one-twelfth to each of her children, including the two married daughters. There is no statement of facts in the record, but it is conceded in the pleadings that the father died insolvent, and that the homestead had been set apart to the family. The widow appealed.

John T. Harcourt, for plaintiff in error. I. The county court had no jurisdiction in such a case. The homestead having been set aside for the family, the power of the county court over the subject ceased.

The probate court, being a court of limited jurisdiction, can only exercise such powers as are specially delegated to it. Frances v. Northcote, 6 Tex. 185. The powers of this court must be exercised in the manner prescribed by law. O. & W. Dig. art. 246.

The manner prescribed by the statute (O. & W. Dig. art. 799) shows very clearly that it was not insolvent estates that the law contemplates as subject for partition, as it provides and directs an allotment, to one or more of the distributees, of a proportion of money or negroes, or other personal property, to supply deficiencies, so as to equalize the division.

II. The interest vested by law in the widow and children of an insolvent estate is a very peculiar interest. It was the legislative intention to secure to the beneficiaries of an insolvent estate (the widow and children) a permanent asylum, free from the assaults of creditors or of ungrateful children. By the 45th section of the act of 1848 (Hart. Dig. art. 1154), all the property exempt from execution, except one year's supply of provisions, is to be set apart for the use and benefit of the widow and children. And it has been held, that the immunity of the law is complete with or without administration, and whether or not the homestead has been set apart by the chief justice of the county court. Sossaman v. Powell, 21 Tex. 664;Green v. Crow, 17 Tex. 187.

Robert T. Foard, for defendant in error, cited the 22d section of the XIIth article of the constitution (Pas. Dig. p. 65), and contended that the exemption is from forced sale, and not from partition.

If the separate property of either, and one of the spouses dies leaving children, the survivor, whose separate property it is, can sell the homestead, and the children have no rights therein. Tadlock v. Eccles, 20 Tex. 792. If the homestead be community property, the husband or wife is entitled to one-half and the children the other half. Pas. Dig. art. 4642. If the homestead be community property, it shall not be necessary for the surviving husband or wife to administer thereon. O. & W. Dig. arts. 811, 817. The law does not restrict...