Manney v. Allen

• Decision Date: 09 May 1890
• Citation: 13 S.W. 989
• Parties: MANNEY <I>et al.</I> <I>v.</I> ALLEN <I>et al.</I>
• Court: Texas Supreme Court

13 S.W. 989

MANNEY et al.v.

ALLEN et al.

Supreme Court of Texas.

May 9, 1890.

Appeal from district court, Hill county.

B. D. Tarlton, for appellants. W. L. Booth and McKinnon & Carlton, for appellees.

STAYTON, C. J.

Plaintiffs are the heirs of Harvey H. Allen, who, during his marriage with Mrs. Hancock, who is the mother of plaintiffs, acquired title to the land in controversy. Defendants claim title through Mrs. Hancock and her present husband. Harvey H. Allen died in 1862, and administration was had on his estate in Harris county. For the purpose of showing title, defendants offered to read in evidence the following order entered in the probate court for Harris county: "Taken from the minutes of the July term, A. D. 1862. Estate of H. H. Allen. This day appeared in open court Electa Chase Allen, the wife and administratrix of Harvey H. Allen, deceased, who, for the allowance made for her and her children at the last term of the court, has made choice, in the lieu thereof, of the following described property, which is a part of the inventory filed by her in this court, to-wit: One patent for 640 acres of land, the same being for the head-right of O. B. Monroe, situated in Navarro county, in the state of Texas; also one patent for 640 acres of land to the heirs of B. De Barr, situated in Hill county; also one patent to the heirs of J. W. Eldridge, lying and situated in Limestone county; also one patent for 320 acres of land to the heirs of E. D. Rhotan, situated and lying in Palo Pinto county. It is therefore ordered, adjudged, and decreed that the same be, and is hereby, set apart to said Electa Chase Allen as an allowance in gross, in accordance with said order of court, for her, and for her heirs and assigns, free from all and every claim and demand of whatever character against the estate of Harvey H. Allen, deceased, subject, however, to the acts of the administrator only." Counsel for plaintiff objected to the introduction in evidence of the order "because the said order and decree showed on its face that the county probate court of Harris county had no jurisdiction to make the disposition of the property made in said order, and mentioned therein, and that said order and decree was void because real estate could not be set aside in lieu of a year's allowance for the widow and children." The court sustained the objection, and excluded the decree, and defendant's counsel excepted. The court, in approving defendants' bill, explains (as its reason, evidently, for rejecting the evidence) that "no issue as to this evidence was admitted to the jury, and no injury was done the defendants." The charge of the court virtually withdrew this issue from the jury.

It is not made to appear whether the property named in this order, which embraces the land in controversy, was set apart to Mrs. Allen and her children, the plaintiffs, in lieu of the year's allowance, or in lieu of exempt property not existing in kind. If it was the former, the law did not empower the court to set apart real estate, but directed that the allowance be "either in money out of the first funds of the estate that may come to his hands, or in such personal effects of the deceased as such widow or guardian may choose to take at the appraisement, or a part thereof in each, as they may select." Pasch. Dig. art. 1304. If it was in lieu of exempt property, homestead or other, not existing in kind, the evidence would have been immaterial; for the interests of the widow and children in the property so set apart would not have been affected by that action of the court, for the statute "provided that, if the estate of such decedent be not insolvent, nothing in this section contained shall be so construed as to prohibit the distribution...