Thomas v. Tyler

• Decision Date: 23 May 1928
• Docket Number: (No. 1079-4960.)
• Citation: 6 S.W.2d 350
• Parties: THOMAS et al. v. TYLER et al.
• Court: Texas Supreme Court

6 S.W.2d 350

THOMAS et al. v. TYLER et al.

(No. 1079-4960.)

Commission of Appeals of Texas, Section A.

May 23, 1928.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by Mrs. Ida Mae Tyler and husband against Scott C. Thomas and another. Part

of judgment rendered in favor of defendants was reversed and remanded by the Court of Civil Appeals (297 S. W. 609), and defendants bring error. Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.

W. P. Hamblen, of Houston, for plaintiffs in error.

F. A. Williams, of Galveston, and Gill, Jones & Tyler, of Houston, for defendants in error.

NICKELS, J.

Except in respect to the matter to be discussed, we adopt the opinion of the Court of Civil Appeals (297 S. W. 609) as expressive of our views of the questions involved.

Scott C. Thomas and Bessie L. Thomas were husband and wife — the marital relation begun prior to July, 1922, was not dissolved otherwise than by death of Mrs. Thomas in 1925.

The property (lot and building) involved belonged to Mrs. Thomas in her separate right.

In July, 1922, Mr. and Mrs. Thomas moved into the building and on and in the property established a homestead. They continued, thus, to reside until September 18, 1925; at that time Mrs. Thomas left, went to her daughter's home, thence to Kerrville ("for her health") where she died September 30, 1925. Within five or six days after departure Mrs. Thomas filed suit for divorce on grounds of cruel treatment; the case, of course, was never tried. Mr. Thomas continued to occupy the property as his home and still claims a homestead right. Another homestead was not acquired by the spouses, or either of them.

Mrs. Tyler (daughter of Mrs. Thomas by a former husband) is sole devisee. The matter of her claim to the property free of the homestead claim of Mr. Thomas is the subject of the litigation.

On the trial evidence proffered by Mrs. Tyler tending to show cruelties, etc., by Mr. Thomas sufficient to justify (it is assumed), if not to compel, abandonment of him by Mrs. Thomas, was excluded. The Court of Civil Appeals held (and Mrs. Tyler now maintains) this was error, for that the evidence was "admissible and material upon the issue as to whether * * * Thomas had forfeited his right to homestead exemption in his wife's property."

In support of that proposition, Trawick v. Harris, 8 Tex. 312; Earle's Ex'rs v. Earle, 9 Tex. 630; Sears v. Sears, 45 Tex. 557; and Sackman v. Sackman, 143 Mo. 576, 45 S. W. 264 — are cited by the Court of Civil Appeals. To the list counsel add Long v. Long (Tex. Civ. App.) 70 S. W. 587, writ denied; Linares v. Linares (Tex. Civ. App.) 51 S. W. 510; Id., 93 Tex. 84, 53 S. W. 579; and Dority v. Dority, 96 Tex. 215, 71 S. W. 950, 60 L. R. A. 941.

The point of decision in Trawick v. Harris and in Earle's Ex'rs v. Earle is thus stated in the latter case:

"Can a wife, who has voluntarily abandoned the home of her husband, claim the benefit of the homestead law, after the death of her, husband?" "The principle, involved in this question," it is there said, "was considered and settled" (i. e., in the negative) "in the case of Trawick v. Harris."

Earle's Ex'rs v. Earle, in turn, is reviewed in Lacey v. Clements, 36 Tex. 661, 664, in these words:

"The wife had voluntarily abandoned her husband, and continued her abandonment several years previous to his decease. It was held that she forfeited her claim to homestead and her widow's allowance," etc.

Trawick v. Harris and Earle's Ex'rs v. Earle are mentioned in Sears v. Sears, 45 Tex. 557, as "former decisions" settling inability of a wife to "claim the benefit of the homestead law" if she had, "without any just and reasonable cause," "voluntarily abandoned her husband, and, without any intention of returning continued to live separate and apart from him until his death." In that case, Sears's Ex'rs v. Sears, the widow sued for the "homestead," etc., of the deceased husband; the fact of her "separation from her husband was not controverted"; in that situation it was held that "whether she did so with or without cause was a question for the jury." In Duke v. Reed, 64 Tex. 705, 713, it is held that:

"The abandonment by Mrs. Dorn having been willful, or, in other words, without [just] cause, and...