Horn v. Arnold

• Citation: 52 Tex. 161
• Parties: W. A. HORN v. WILLIAM ARNOLD AND N. ANDERSON, ADM'R.
• Decision Date: 11 November 1879
• Court: Texas Supreme Court

52 Tex. 161

W. A. HORN

v.WILLIAM ARNOLD AND N. ANDERSON, ADM'R.

Supreme Court of Texas.

Nov. 11, 1879.

APPEAL from Hunt. Tried below before the Hon. Green J. Clark.

This case was submitted as an agreed case, but neither in the record nor in the briefs of counsel can any information be obtained as to the distinctive character of the action, unless it be found in the judgment, which provides for a partition of the land. The case was docketed below as “Nathaniel Anderson, administrator, v. W. A. Horn and William Arnold.”

The agreed case is as follows, viz.: “Andrew McDonald died in Hunt county, Texas, in April, A. D. 1870; he left surviving him his wife, Mary McDonald, and his son, John C. McDonald, a minor, about twenty years of age, who were the only persons living with him at the time of his death upon the premises in controversy. He left also surviving him T. T. McDonald, who was then of full age, married, and living at his own home, and Elizabeth Arnold, who was also married and living with her husband at their home, which was not on the land in controversy. The premises in controversy constituted the homestead of Andrew McDonald at the time of his death.

Mary McDonald died intestate on the premises in the year 1873. The estate of Andrew McDonald was wholly insolvent. Defendant Horn now holds by deed the interest of said John C. McDonald in the premises. Defendant Arnold is the lawful guardian of all the heirs of Elizabeth Arnold, who is dead. Plaintiff Anderson is the administrator of the estate of said T. T. McDonald, who is also dead, and plaintiff is entitled to recover under the deed from Andrew McDonald to T. T. McDonald seventy acres of the east end of the land described in the petition, and the remaining two hundred acres of said land was the homestead of Andrew McDonald at the time of his death. At the time of the death of Mary McDonald, in 1873, John C. McDonald, the said minor, had become of full age, had married, and was not then living on the said two hundred acres. It was further agreed that Elizabeth Arnold, with her husband, was living on a forty-acre tract of land adjoining the homestead of the said Andrew McDonald; that upon the death of her husband, Elizabeth Arnold and John C. McDonald exchanged houses, where they remained, and the said John C. McDonald continued to cultivate and control the land in controversy until the 17th of September, 1874, when he sold his interest to defendant Horn; that on the 15th of July, 1879, the District Court rendered judgment that the said premises be equally divided between the plaintiff Anderson and defendant Horn and defendant Arnold, one-third each.”

Horn moved for a new trial below, which was overruled.

He assigned for error: 1st. The action of the court in not setting aside one-half of the two hundred acres to him as the vendee of John C. McDonald; 2d. In dividing the two hundred acres equally between the heirs of Mary McDonald; 3d. In not giving to W. A. Horn, as vendee of John C. McDonald, one hundred and thirty-three and one-third acres; 4th. In giving to W. A. Horn sixty-six and two-thirds acres.Daniel Upthegrove, for appellant.

I. This being an insolvent estate, the fee-simple title to the homestead, at the death of Andrew McDonald, by operation of law was cast upon his widow and children. (Green v. Crow, 17 Tex., 188;Reeves v. Petty, 44 Tex., 252.)

II. We contend that the correct construction of article 1305 of Paschal's Digest refers to minor children. (Hoffman v. Neuhaus, 30 Tex., 633.)

If we are correct, we respectfully ask that this cause be reversed.

E. W. Terhune and W. C. Jones, for appellees.

I. Where a husband dies insolvent and intestate, and no administration is had on his estate, leaving surviving a wife and children, some adults and some minors, the minors living with the mother on the homestead, leaving no property save the homestead, and the wife dies intestate after the majority of the minors, and no administration is had on her estate, and more than four years have elapsed after her death, then the homestead is subject to partition among the surviving heirs according to quantity and quality, each child getting an equal share. (Const., art. 17, sec. 52; Rev. Stats., arts. 2004, 2005; Paschal's Dig., art. 1305; Wright v. Doherty, 50 Tex., 35.)

II. When a husband dies...