Thos. A. Pressley's Heirs v. Robinson

• Decision Date: 01 January 1882
• Docket Number: Case No. 3379.
• Citation: 57 Tex. 453
• Parties: THOS. A. PRESSLEY'S HEIRS v. MARY E. ROBINSON ET AL.
• Court: Texas Supreme Court

57 Tex. 453

THOS. A. PRESSLEY'S HEIRS

v.MARY E. ROBINSON ET AL.

Case No. 3379.

Supreme Court of Texas.

1882.

APPEAL from Tarrant. Tried in 1876 before the Hon. J. A. Carroll.

This suit was filed at the March term, 1875, by appellants Garrett Pressley, Mollie Pressley, Parlee Pressley, Jenkins Pressley and Josephine Pressley, by their guardian, G. F. Chrisman, against Mary E. Robinson and her husband, W. T. M. Robinson, and Randal Robinson, administrator of the estate of Thomas A. Pressley. The defendants answered at the same term; but the original papers having been destroyed, were substituted July 25, 1876.

The history of the case, as stated in the petition, is as follows: Thomas A. Pressley and Catharine M. Pressley, the father and mother of plaintiffs, were married in 1854. They acquired property of the value of $3,000, consisting of a tract of land in Tarrant county of four hundred and fifteen acres, and personal property consisting of horses, cattle, hogs, wheat, corn, etc., and $1,000 in money. Upon the tract of land was their homestead. Catharine died in August, 1866, intestate. The community owed no debts. There was no administration upon her estate, nor did her husband qualify as the community survivor. Thomas A. Pressley married defendant Mary E. Robinson in 1868. She was a widow, and had a homestead on land adjoining the land of Thomas A., which she continued to claim and use as a homestead after her said marriage, but she lived with said Thomas A. as a member of his family, as did also the minor plaintiffs. Thomas A. died in 1873, intestate, and owing no debts, and leaving no children by his second wife, the said Mary E. Thomas A. owned at the time of his death, besides his half interest in the land, personal property of the value of $1,500, being the property of the first community and the increase, and $1,000 in money, most of it belonging to the first community. Immediately after his death the defendant Mary E. took possession of the money and appropriated it to her own use, to the exclusion of the rights of plaintiffs, and withheld it from the administrator of said Thomas A., the defendant Randal Robinson, who, upon his appointment, took possession of all the personal property belonging to the estate; set apart a portion of it of the value of $1,000 to the said Mary E., and sold the remainder thereof to the highest bidder; and after paying such debts as existed, still had on hand $700. The petition further avers that in the year 1873 defendant Mary E. intermarried with her co-defendant, W. T. M. Robinson, and from that time they have held exclusive possession of the above described tract of land, including the homestead, excluding plaintiffs, and appropriating to their own use the entire revenues from the land, which are worth annually $500. The petition is indorsed as an action of trespass to try title. Plaintiffs averred that defendants Mary E. and her husband are strangers, and not members of the family; that their guardian is the head of the family, and pray for a restitution of their rights in the homestead. They prayed for judgment for the land; for a writ of possession; for judgment against said Mary E. for the sums of money, etc., which she has appropriated; for judgment against her and her husband for the rents and profits of the land, and for judgment against the estate of Thomas A. Pressley for the money, property, rents, etc., appropriated by him during his life-time, and which belonged to them as the heirs of their mother. They also prayed in the alternative for partition (if they had mistaken their remedy), and that their interest in the land be set apart to them.

The cause was called for trial August 23, 1876. The court sustained a general demurrer to the petition, and (plaintiffs declining to amend) dismissed the suit, and rendered judgment against plaintiffs for costs.

Plaintiffs appealed, assigning for error the judgment of the court.

G. F. Chrisman, for himself.--It is respectfully submitted that, immediately upon the death of Catharine M., the first wife of Thos. A. Pressley, her interest in the community estate of herself and husband vested in her only heirs, the minor plaintiffs, subject only to the payment of the community debts…. The minor plaintiffs, as heirs of their mother, were joint owners or tenants in common with their father in the said tract of land, and were entitled to have the same partitioned in the district court, under the general jurisdiction of that court. Ellis v. Rhone, 17 Tex., 131…. The district court, it is insisted, is the proper tribunal in which the rights and interests of plaintiffs, as against the administrator of the separate estate of Thos. A. and the community estate of him and his second wife, should be determined. The claim of plaintiffs as against Robinson, administrator of Pressley's estate, is not as distributees of said estate, but as heirs of their mother, and joint owners of the four hundred and fifteen acre tract. See Rhone v. Ellis, cited above. The father having died in 1873, plaintiffs, as heirs to him, have an interest in his undivided interest in land. The said interest of plaintiffs' father was his separate property. It is further shown that the same was his homestead, and being a homestead, did not pass as assets to the said administrator of his separate and of the community estate of himself and his second wife, defendant Mary E. Pasch. Dig., art. 5487. It is shown from the petition that Thos. A. Pressley's separate estate and the community of him and his second wife is solvent, and that after payment of all the debts the administrator has on hand the sum of $700. It is shown that the estate is ready for a general distribution. The estate being solvent, the homestead was subject to partition, and as against defendant Mary E., the minor plaintiffs are entitled to have their interest in the same set apart to them. Iams v. Thompson, 14 Tex., 467;O'Docherty v. McGloin, 25 Tex., 72;Singletary v. Hill, 43 Tex., 590;Sossaman v. Powell, 21 Tex., 666. The estate being solvent, it is insisted that plaintiffs' rights in the homestead are determined and fixed by the statutes of descent and distribution, and that their interest in the same is not changed or governed by the provisions of the law regarding the administration of the estates of deceased persons. But if the homestead of the father, the same being his undivided interest in the four hundred and fifteen acre tract belonging to the estate of himself and his first wife, cannot be partitioned, then, it is submitted, the same must be used for the joint benefit and support of the family, and controlled by the head of the family. Defendant Mary E. is not, by reason of her relationship with the father of the minor plaintiffs, their natural guardian. There is upon her no legal duty to rear, support and maintain them. By her marriage with defendant W. T. M. Robinson, she went out from, and was no longer a constituent member of, the family to which said minors belonged. By her said act an entirely new family was created, with defendant W. T. M. Robinson as its head, and thereby she forfeited and abandoned any rights she may have had in and to said interest of Thos. A. Pressley in said land as a homestead. By reason of the marriage of defendant W. T. M. Robinson with defendant Mary E., no duty was devolved on him either to protect, support or educate minor plaintiffs. An intruder upon the land, and a stranger so far as they are concerned, it is shown by averments in plaintiffs' petition that himself and wife are deriving the sole and exclusive benefit from the occupation of the land,--not only the interest of the deceased husband, but also the interest of said Catharine M., the mother of minor plaintiffs; and it is further shown that said W. T. M. Robinson and wife deny the right of entry upon and...