Mays v. Mays, 2139.
| Decision Date | 13 November 1931 |
| Docket Number | No. 2139.,2139. |
| Citation | 43 S.W.2d 148 |
| Parties | MAYS v. MAYS et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Jasper County; G. E. Richardson, Judge.
Suit by Mrs. Allie Mays against A. L. Mays and others. From an adverse judgment, plaintiff appeals.
Affirmed.
Minton & Minton, of Hemphill, and Lewis Lanier, of Jasper, for appellant.
Adams & Hamilton, of Jasper, and A. M. Huffman, of Beaumont, for appellees.
O'QUINN, J.
This action grew out of the application of Mrs. Allie Mays, surviving widow of John Mays, deceased, to Hon. A. S. McKee, judge of the probate court of Jasper county, Tex., to have certain property of the estate of her deceased husband set aside as her homestead. In her application, she alleged that John Mays was dead and that she was his surviving widow; that at the time she and deceased were married he established his homestead for himself and family on lots Nos. 1 to 14, inclusive, in block No. 10 of the Blackshear addition to the town of Jasper, in Jasper county, Tex., having his residence on lot No. 1 of said addition; that the occupation of the deceased, John Mays, and the only occupation which he pursued, was that of building tenant houses and using the rents thereof to support his family; that all of said lots were contiguous and did not exceed in value, exclusive of improvements, the sum of $5,000; that the proceeds of the rents of the tenant houses situated on said property were used by the said John Mays, deceased, for the support of his family; and that the use of said property as his homestead continued up to the time of his death. She further alleged that there was ample property belonging to said estate, other than that which she sought to have set aside as her homestead, to pay all debts and claims against the estate.
The administrator, appointed prior to her application, did not answer. A. L. Mays, Lewis Mays, Lee Mays, and Mrs. Lucille Raggie, appellees, all children and heirs of John Mays, deceased, contested appellant's application, and denied that deceased, John Mays, at the time he married appellant, established his homestead on lots 1 to 14 of block 10 of the Blackshear addition to the town of Jasper, Tex., but that he established his home on lot No. 1 of block No. 10 of said Blackshear addition, and that he continued to so use and occupy same until his death, and that he never at any time claimed or used any other property as his homestead. They further answered that there was another house on a portion of said lot No. 1, which was not a part of the homestead, was never occupied, used, or claimed as such by said John Mays, and which they asked to be surveyed off and declared to be no part of the homestead.
Appellees, contestants, in their answer, admitted that the occupation of the deceased, John Mays, at the time of his death, was that of building rent houses and renting them to various parties and using the proceeds for the support of himself and family—used all money so collected for such purpose. They further pleaded that they were willing for the residence occupied by appellant, being the same in which she lived with deceased at the time of his death, to be set aside to appellant as a homestead, exclusive of the tenant house situated on said lot No. 1, which they insisted forms no part of the homestead. Appellees further allege that all of the property of the estate of the deceased, John Mays, was the separate property of said deceased, he having acquired same prior to his marriage to appellant.
Judgment on the application was entered by the court setting aside to appellant, as a homestead, all of lot No. 1, block No. 1, Blackshear addition, except a space of 75×120 feet on which the tenant house was situated. From this judgment appellant appealed to the district court of Jasper county.
In the district court, the case was tried to the court without a jury, and judgment entered setting aside as a homestead for appellant all of lot No. 1 in block No. 10, on which the residence was situated, except a space of 75×120 feet on which the tenant house was situated. Appellant's application to have that portion of lot No. 1 on which the tenant house was situated, and lots 2 to 14, inclusive, set aside to her as a part of her homestead, was denied. From this judgment appellant has brought this appeal.
The facts are agreed. They show the deceased, John Mays, died November 6, 1929, and appellant, Allie Mays, is his surviving widow. Administration of the estate of deceased is pending in the probate court of Jasper county, Tex., with John H. Seale administrator. An inventory and appraisement of said estate had been duly returned and approved. At the time of the filing of appellant's application herein no order had been made by the court setting aside a homestead for the use and benefit of appellant. At the time deceased married appellant, he established his homestead on lot No. 1 in block No. 10, Blackshear addition to the town of Jasper. All the property shown in the inventory of the estate of deceased, John Mays, was his separate property. The estate was solvent. All parties accepted as correct the valuation fixed by the appraisers on the several parcels of the estate. The lands were valued separately from the improvements thereon. The following sketch shows the situation of the lots in controversy:
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The residence established by John Mays as his homestead is on lot No. 1, near Highway No. 8. It is seen that lot No. 1 is very large, long, and of irregular shape. The tenant house on said lot occupying a space 75×120 feet is to the rear. The lines delineating the 75×120 foot space were made by the order of the court, not by Mays. As before stated, lots 1 to 14, inclusive, are the ones sought by appellant to have set apart to her as a homestead. They are all contiguous, and there are nine tenant houses situated on lots 2 to 14, and one tenant house on lot No. 1; ten tenant houses on the lots in question. The lots 2 to 14, inclusive, were valued at $3,400. The tenant houses on them were valued at $12,400. Lot No. 1 was valued at $1,000, and the two houses on it (residence and tenant house) at $3,800. The lots, 1 to 14, inclusive, were valued at $4,400, exclusive of improvements. The ten tenant houses on said lots were continually rented by deceased, John Mays, and the proceeds used by him for the support of his family, so far as necessary. The only occupation of deceased was that of building tenant houses and renting them, using the rents for family support. The town of Jasper is incorporated.
The question here for decision is: What constituted the homestead of John Mays at the time of his death? Appellant earnestly insists that it was composed of the fourteen lots above mentioned and delineated on the sketch. This is as strenuously denied by appellees, they insisting that said homestead consisted of lot No. 1, on which the residence was situated, less the tenant house shown on 75×120 feet, a part of lot No. 1. This view was adopted by both the probate and district courts, and is here assigned as error.
Article 16, § 51, of the Constitution, provides: "The homestead, not in a town or city, shall consist of not more than two hundred acres of land, which may be in one or more parcels, with the improvements thereon; the homestead in a city, town, or village, shall consist of lot, or lots, not to exceed in value five thousand dollars, at the time of their designation as the homestead, without reference to the value of any improvements thereon; provided, that the same shall be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family; provided also, that any temporary renting of the homestead shall not change the character of the same, when no other homestead has been acquired."
If we correctly understand appellant's brief, the contention is made: First, that the court erred in not designating and setting aside all of lots 1 to 14, inclusive, in block 10, as the homestead of appellant because the residence was situated on lot No. 1, and all of the lots were contiguous,...
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