Newnom v. Hedeman

• Decision Date: 09 February 1916
• Docket Number: (No. 5588.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 184 S.W. 298
• Parties: NEWNOM v. HEDEMAN et al.
• Court: Texas Court of Appeals

184 S.W. 298

NEWNOM v. HEDEMAN et al.

(No. 5588.)^*

Court of Civil Appeals of Texas. Austin.

February 9, 1916.

Rehearing Denied March 15, 1916.

Appeal from District Court, Llano County; N. J. Stubbs, Judge.

Proceedings between Mrs. May Newnom, surviving widow, and H. E. Hedeman and others to determine priority of claims against the estate of Geo. H. Newnom, deceased. From orders allowing certain sums to the widow but subordinating payment to the claims of mortgage creditors, she appeals. Affirmed in part, and in part reversed and rendered.

J. H. McLean, of Llano, for appellant. Wilburn Oatman, of Llano, for appellees.

RICE, J.

This is a controversy between the appellant, the surviving widow of Geo. H. Newnom, deceased, who is executrix of his estate, on the one hand, and appellee and other mortgage creditors of said estate on the other, as to the priority of their claims against said estate over the allowances set apart to her in lieu of exemptions. The facts are substantially these: Prior to the marriage of appellant to said Newnom he had, while a single man, given a mortgage lien to appellee Hedeman to secure a note executed by him to said Hedeman on seven head of cattle, which was a valid, subsisting, and unsatisfied lien, both at the time of his marriage and death, but which had never been signed or acknowledged by his wife after their marriage. Upon his death appellant, his surviving widow, qualified as executrix of his estate, which was insolvent, and, as such, applied to the probate court of Llano county for an order setting apart to her her statutory allowances and exemptions, and in response thereto said court made an order, allowing her $300 for a year's support and the following sums in lieu of exempt property not on hand in kind, viz.: $500 in lieu of homestead and $495 in lieu of other exempt property — but subordinated the payment thereof to that of all claims secured by mortgage or other lien on the property of deceased. The court, however, found the Hedeman claim to be the only one so secured, and awarded it priority over appellant's allowances in lieu of exemptions. She, being dissatisfied with that judgment, appealed to the district court, where a similar judgment was rendered, taxing costs of both courts against her, from which she prosecutes this appeal, urging by her first assignment that the court erred in rendering judgment giving priority to the claim of appellee, because she had not signed and acknowledged said claim, as required by law; and, second, because, in addition thereto, said estate was insolvent at the time of her husband's death.

By article 3413, Vernon's Sayles' Rev. Civ. Stats., it is provided that:

"At the first term of the court after an inventory, appraisement and list of claims have been returned, it shall be the duty of the court, by an order entered upon the minutes, to set apart for the use and benefit of the widow and minor children and unmarried daughters remaining with the family of the deceased, all such property of the estate as may be exempt from execution or forced sale by the constitution and laws of the state, with the exception of any exemption of one year's supply of provisions."

By article 3414, Id., it is provided that:

"In case there should not be among the effects of the deceased all or any of the specific articles so exempted it shall be the duty of the court to make a reasonable allowance in lieu thereof, to be paid to such widow and children, or such of them as there may be as hereinafter directed."

By article 3420, Id., it is provided that:

"No property upon which liens have been given by the husband and wife, acknowledged in a manner legally binding upon the wife to secure creditors, or upon which a vendor's lien exists, shall be set aside to the widow or children as exempted property or appropriated to make up the allowances made in lieu of exempted property, until the debts secured by such liens are first discharged."

Article 3422, Id., provides that:

"Should the estate, upon final settlement, prove to be insolvent, the title of the widow and children to all the property and allowances set apart or paid to them, under the provisions of this and the preceding chapter, shall be absolute, and shall not be taken for any...