Hunter v. Clark

• Decision Date: 06 March 1985
• Docket Number: No. 04-83-00501-CV,04-83-00501-CV
• Citation: 687 S.W.2d 811
• Parties: Paul HUNTER, Appellant, v. Charles E. CLARK, Appellee.
• Court: Texas Court of Appeals

Page 811

687 S.W.2d 811

Paul HUNTER, Appellant, v. Charles E. CLARK, Appellee.

No. 04-83-00501-CV.

Court of Appeals of Texas,

San Antonio.

March 6, 1985.

Samuel F. Biery, San Antonio, for appellant.

Morris Kirschberg, San Antonio, for appellee.

Before CADENA, C.J., and ESQUIVEL and BUTTS, JJ.

OPINION

BUTTS, Justice.

The question on appeal is whether the surviving spouse waived his homestead rights to the separate property of his deceased wife. The court ruled in its construction of the premarital agreement that he did. The judgment of the trial court reflects the ruling that, as the result of the couple's premarital agreement, the surviving spouse did waive his homestead rights to the real property. The plaintiff, the only child and devisee in his mother's will, brought a declaratory judgment action, TEX.REV.CIV.STAT.ANN. art. 2524-1 (Vernon 1965), requesting the court to determine the status of the real property, a residence, of which he became the owner under the terms of his mother's will.

Before their marriage in 1968, Katherine V. Clark, the deceased, and Paul Hunter, the surviving spouse and defendant, executed a premarital agreement. Katherine's lawyer drew up the instrument and the two signed the agreement in his office; Hunter was not represented by a lawyer. Article 4610 of the TEX.REV.CIV.STAT.ANN., in effect at that time, controlled, ¹ the applicable statute now being section 5.41 of the TEX.FAM.CODE ANN. (Vernon Supp.1985). The pertinent portions of the PRE-MARITAL MATRIMONIAL PROPERTY AGREEMENT are:

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Now, therefore, for and in consideration of the premises and the agreement by each of the parties to marry the other, the parties do mutually agree that from and after the date of this instrument and continuing through the termination of such marriage, whether the same by death or divorce, the property presently owned by each of the parties shall be and remain the separate property of that respective party.

It is specifically agreed that all of the property presently owned by the Party of the First Part, real, personal or mixed, and wherever situated, including but not limited to cash on hand, stocks, bonds, real estate and the improvements thereto, livestock and other property of every nature whatsoever, shall be and remain the separate property of the Party of the First Part throughout said marriage without regard to any change in the nature or extent thereof. It being specifically agreed that all increases in said property, as well as all appreciation in value of said property, shall be and remain the separate property of the Party of the First Part.

[The identical words were set out as to the separate property of the Party of the Second Part.]

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Each of the parties does by this instrument and for the considerations hereinabove set out, covenant and agree with the other that each party shall claim as his or her separate property and estate all of the property hereinabove set forth as separate property and that, in addition the party owning such separate property shall have the full unrestricted power and right to control, manage and dispose of such separate property as that party may see fit at any time during said marriage relationship. Said power to control, manage and dispose of said property not being subject to the consent or approval of the other party in any manner whatsoever.

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The evidence established that the only property of the deceased was the house where she and Hunter resided after their marriage until the time of her death in September, 1977. It was also shown that Hunter owned a house at the time of the marriage; however, the couple never lived in it. He testified that his son presently resided in his house. The evidence further reflected that Clark, the son of the deceased, had paid the taxes on his mother's house after her death until 1981, when Hunter paid part of them. Clark had also paid some utility bills immediately following the death. Hunter stated he had done some painting and repairs on the house. Hunter affirmed he had declared for tax purposes a homestead exemption on his separate property at the county tax office. There is no dispute that Hunter lived in the subject premises continuously from the time he married Katherine until the time of trial and still continued to do so. Although the death occurred in 1977, Clark did not file suit for declaratory judgment until May, 1982.

While Hunter assigns forty-nine points of appeal, it is plain they may all be addressed under one topic: whether there was a waiver of the surviving spouse's homestead right to the property in question. TEX. CONST. art. XVI, § 52 provides:

Sec. 52. On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same.

TEX.PROB.CODE ANN. § 282 (Vernon 1980) provides:

The homestead rights of the surviving spouse and children of the deceased are the same whether the homestead be the separate property of the deceased or community property between the surviving spouse and the deceased, and the respective interests of such surviving spouse and children shall be the same in one case as in the other.

TEX.PROB.CODE ANN. § 283 (Vernon 1980) provides:

On the death of the husband or wife, leaving a spouse surviving, the homestead shall descend and vest in like manner as other real property of the deceased and shall be governed by the same laws of descent and distribution.

The language of the Constitution is plain. The surviving spouse has the same homestead rights as both spouses had prior to the death of one; and this is true whether the survivor be the husband or the wife. Brown v. Reed, 48 S.W. 537, 538 (Tex.Civ.App.1898, writ ref'd). The homestead provision is intended to relate to the rights of heirs and the surviving husband or wife, as between themselves, to the homestead property. Spencer v. Schell, 107 Tex. 44, 173 S.W. 867 (1915). TEX. CONST. art. XVI, § 52 gives to the surviving spouse the right to use and occupy the homestead, even though it was the separate estate of the deceased. Jenkins v. Hutchens, 287 S.W.2d 295, 298 (Tex.Civ.App.--Eastland 1956, writ ref'd n.r.e.). The deceased may not defeat this right by devising the property before death. Wicker v. Rowntree, 185 S.W.2d 150, 152 (Tex.Civ.App.--Amarillo 1945, writ ref'd w.o.m.).

Even if the survivor (Hunter) had a homestead right of his own when he married, and at the death of deceased, he still owned and controlled that property, the survivor has a right to the subject homestead. Clift v. Kaufman & Runge, 60 Tex. 64 (1883); Pressley's Heirs v. Robinson, 57 Tex. 453, 460 (1882). This is true even though there is no doubt that Hunter owned a house where he could presently be living. The surviving spouse may use and occupy the homestead so long as he or she elects to do so. Tiboldi v. Palms, 34 Tex.Civ.App. 318, 78 S.W. 726, aff'd 97 Tex. 414, 79 S.W. 23 (1904). This applies against the creditors or heirs of the deceased. Blum v. Gaines, 57 Tex. 119, 122 (1882).

The homestead right is a right which vests immediately upon the death of the spouse and continues unless abandoned. Good v. Good, 293 S.W. 621, 623 (Tex.1927). The surviving spouse has the right to live on the premises for the remainder of his life without the permission of the deceased spouse's heirs. Hill v. Aldrich, 242 S.W.2d 465, 466 (Tex.Civ.App.--San Antonio 1951, writ dism'd). Testamentary disposition by the deceased may not destroy the right of the surviving constituent family members to use and occupy the homestead. Lindsley v. Lindsley, 139 Tex. 512, 163 S.W.2d 633, 636 (1942). The homestead right is a personal privilege with the attributes and incidents of a life estate. Petrus v. Cage Brothers, 128 S.W.2d 537, 538 (Tex.Civ.App.--San Antonio 1939, writ ref'd). It is in the nature of a life estate analogous to that of a life tenant. Rancho Oil Co. v. Powell, 142 Tex. 63, 175 S.W.2d 960, 963 (1943). The surviving spouse is not liable for rent payable to the heirs. Pressley's Heirs v. Robinson, supra at 458. But the surviving spouse is not entitled to reimbursement for improvements. During the continuation of his estate he is chargeable with the expenses of upkeep of the property. Sargeant v. Sargeant, 19 S.W. 382, 385 (Tex.Civ.App.--Fort Worth 1928, no writ). See George v. Taylor, 296 S.W.2d 620, 624 (Tex.Civ.App.--Fort Worth 1956, writ ref'd n.r.e.) as to rights of heirs.

We conclude that Hunter could rightfully elect to remain in the homestead premises, although it was the separate property of his wife, as mandated by the Constitution and statutes of Texas unless he had waived his personal privilege.

WAIVER

The privilege of the homestead right may be abandoned. Once the right to use and occupy the homestead premises becomes vested in the surviving spouse, the right is presumed to continue until there is affirmative proof of abandonment. Good v. Good, supra at 623. See Oelkers v. Clemens, 260 S.W.2d 74 (Tex.Civ.App.--Austin 1953, writ ref'd n.r.e.). It follows that the privilege which is personal to the surviving spouse may be waived. See Williams v. Williams, 569 S.W.2d 867 (Tex.1978). A definition of waiver appears in Cattle Feeders, Inc. v. Jordan, 549 S.W.2d 29, 33 (Tex.Civ.App.--Corpus Christi 1977, no writ):

Waiver, whether express or implied, is an intentional release, relinquishment, or surrender of a right that is at the time known to the party making it. In order to constitute a waiver, it is essential...