Thompson v. Kay

• Decision Date: 12 December 1934
• Docket Number: No. 5885.,No. 5773.,No. 5790.,No. 6079.,6079.,5773.,5790.,5885.
• Citation: 77 S.W.2d 201
• Parties: THOMPSON et al. v. KAY et al. HUEY v. WARNER. MASSEY et al. v. CITIZENS' NAT. BANK OF WEATHERFORD et al. GILL et al. v. BAIRD et al.
• Court: Texas Supreme Court

Page 201

77 S.W.2d 201

THOMPSON et al. v. KAY et al.

HUEY v. WARNER.

MASSEY et al. v. CITIZENS' NAT. BANK OF WEATHERFORD et al.

GILL et al. v. BAIRD et al.

No. 6079.

No. 5773.

No. 5790.

No. 5885.

Supreme Court of Texas.

December 12, 1934.

Error to Court of Civil Appeals of Tenth, Fourth, Second, and Ninth Supreme Judicial Districts.

Four separate suits as follows: (1) Suit by Emma Kay and husband against T. J. Thompson and others. A judgment granting plaintiffs insufficient relief was reversed by the Court of Civil Appeals , and defendants bring error. (2) Application by Alberta Huey, administratrix, opposed by Mrs. L. Warner, guardian, to have certain property declared a homestead and withdrawn from administration of the probate court. A judgment in favor of the administratrix was reversed by the Court of Civil Appeals , and the administratrix brings error. (3) Suit by Lee Massey and others against the Citizens' National Bank of Weatherford and others. A judgment for defendants was affirmed by the Court of Civil Appeals , and plaintiffs bring error. (4) Suit by Lila Baird and others against Mrs. Bertie Gill and others. A judgment for plaintiffs was affirmed by the Court of Civil Appeals , and defendants bring error.

Judgment of the Court of Civil Appeals in each case affirmed.

In No. 6079:

L. W. Sheppard, of Groesbeck, and F. M. Fitzpatrick, of Waco, for plaintiffs in error.

P. O. French, of Fairfield, for defendants in error.

In No. 5773:

Spencer, Rogers & Lewis, of San Antonio, for plaintiff in error.

Hull & Oliver, of San Antonio, for defendant in error.

In No. 5790:

F. O. McKinsey, formerly of Weatherford but now of Austin, for plaintiffs in error.

Grindstaff, Zellers & Hutcheson, of Weatherford, for defendants in error.

In No. 5885:

Tom F. Coleman, of Lufkin, for plaintiffs in error.

J. J. Collins and R. W. Fairchild, both of Lufkin, for defendants in error.

GREENWOOD, Justice.

The four above styled and numbered cases present important questions of homestead law. The first three involve the relative rights of creditors and heirs in homestead property, about which much has been written in the opinions of the Supreme Court of Texas, from the earliest date to the present. It must be candidly admitted that declarations of law on this subject contained in opinions by eminent justices cannot be reconciled with declarations in other opinions by justices of like eminence. The principal purpose of this opinion is to make clear and plain the rules governing the relative rights of creditors and of heirs in homestead property in so far as such rules are involved in the correct determination of the first three cases. They cover a wide range.

The fourth case involves, not the sale of a decedent's homestead for debts, but the conditions under which such homestead is subject to partition among heirs. So often have the court's opinions referred to this question, in cases involving rights of creditors and heirs in homesteads, that we have deemed it not inappropriate to group the fourth case with the other three.

To secure clarity, each case will be stated separately and the questions it presents will be decided separately.

In the first cause, numbered 6079, styled T. J. Thompson et al. v. Mrs. Emma Kay et al., concise statements of the nature of the suit, of the controlling facts, of the judgments below, and of the question for decision by the Supreme Court are found in the argument filed by the attorneys for plaintiffs in error as follows:

"Defendants in Error, Mrs. Emma Kay and husband instituted this suit, in the District Court of Limestone County, against T. J. Thompson, B. P. Thompson, Mittie Watkins and husband, F. M. Watkins, and M. E. Bloom and husband, S. L. Bloom, to partition a tract of 82½ acres of land, which said tract of land constituted the entire estate of Mrs. M. A. Thompson, deceased. The same was her separate property. She was a widow at the time of her death and occupied the same as her homestead. The plaintiffs in error, T. J. Thompson, B. P. Thompson, Mittie Watkins (wife of F. M. Watkins) and M. E. Bloom (wife of S. L. Bloom), together with defendant in error, Mrs. Emma Kay (wife of L. T. Kay), constituted the sole and only surviving heirs of the said Mrs. M. A. Thompson, deceased, each and all of whom were adults and none of whom were unmarried daughters at the time of the death of the deceased; the said Mrs. M. A. Thompson, died intestate and said Mrs. Emma Kay, Mrs. Mittie Watkins, Mrs. M. E. Bloom, T. J. Thompson, and B. P. Thompson, were her children and sole and only heirs at law, and as such inherited title thereto from the said Mrs. M. A. Thompson, deceased, in equal portions. No administration was ever had upon the estate of said deceased, nor was there any necessity therefor. The only debt against the estate of said deceased was for the expense of the burial of the deceased, amounting to the sum of $211.50. The defendant in error, Mrs. Emma Kay had paid $154.00 thereof; the plaintiff in error, Mrs. M. E. Bloom paid $42.50 thereof, and the plaintiff in error, T. J. Thompson paid $15.00 thereof.

"The defendants in error, Mrs. Emma Kay, joined by her husband, L. T. Kay, sought to charge said 82½ acres of land with said burial expense and fix a lien against the same. They also sought as an incident of partition, to establish said debt and have the same satisfied out of said property in equitable portions. They also alleged that said land was incapable of partition in kind, prayed the court to appoint a Receiver therefor, have the same sold and apply the proceeds of said contemplated sale, first, to the satisfaction of the balance remaining unpaid of said funeral bill, and the remainder if any, of said proceeds, to be divided pro rata among the respective joint owners of said property.

"The trial was before the court, without the intervention of a jury. The court after hearing the evidence, ordered the land partitioned, and appointed commissioners for that purpose, and held that said land, being the homestead of the deceased, Mrs. M. A. Thompson, was not subject to the payment of said funeral expense, and entered judgment accordingly.

"The defendants in error prosecuted an appeal to the Court of Civil Appeals for the Tenth Supreme Judicial District at Waco, and that court on June 4th, 1931, reversed and remanded the case on the homestead question, and held in effect that upon the death of the deceased, Mrs. M. A. Thompson, she having left no surviving minor child or unmarried daughter, her separate property, occupied by her as a homestead, went to her heirs charged with burial debts, and reversed and remanded the case."

To the above statement we deem it necessary to add only that there is no dispute that Mrs. M. A. Thompson died in 1929, and that the facts pleaded by defendants in error were found by the trial court to be true. After stating that the proper preliminary steps had been taken, and that a writ of error was allowed to review the judgment of the Court of Civil Appeals, the attorneys for plaintiffs in error say: "Therefore, the question to be decided in this case is: `All of the children of Mrs. M. A. Thompson, deceased, being of legal age and there being no unmarried daughters among them, did the homestead of said deceased (she being a widow and said homestead being her separate property) pass to the children (they being her sole and only heirs at law) charged with the funeral bill in question?'"

The Court of Civil Appeals determined the above question in the following words in an opinion by Chief Justice Gallagher, to wit:

"The determination of the issue under consideration depends upon whether the homestead exemption of said tract of land terminated at the death of Mrs. Thompson, or whether it continued for the protection of the same after it passed by inheritance to the parties to this suit. The test prescribed by our Supreme Court for determining whether the homestead exemption of property continues after the death of the owner is whether such owner left surviving a husband or wife, a minor child, or an unmarried daughter residing with the family. * * *

"Applying the test so prescribed by our Supreme Court, we are constrained to hold that the homestead character and exemption of said tract of land ceased at Mrs. Thompson's death, and that it was subject in the hands of the parties to this suit to the indebtedness incurred by appellants in giving her decent burial. It follows that the court erred in sustaining the exception to so much of appellants' petition as set up a claim for money expended by them in providing such burial, and sought to charge the same upon the land to be partitioned." Kay v. Thompson, 40 S. W.(2d) 884, 885.

In order to clearly understand the contention of the adult heirs, other than unmarried daughters, that the homestead should be held still free from administration to pay the deceased owner's debts, as it was free from execution for such debts during their lifetime, it is necessary to set forth the sections of the Constitution and articles of the statutes which this court has held to determine the question.

The sections of the Constitution of 1876 involved are section 52 of article 16 providing for the descent and partition of the homestead, and that part of section 50 of the same article reading: "The homestead of a family shall be, and is hereby protected from forced sale, for the payment of all debts except for the purchase money thereof, or a part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon, and in this last case only when the work and material are contracted for in writing, with the consent of the wife given in the same manner as is required in making a sale and conveyance of the homestead."

Since the revision of 1879, our statutes have contained what was article 2008 of that revision, which reads as follows: "The exempted property, other than...