Trousdale v. J. Trousdale's Ex'rs

• Decision Date: 01 January 1871
• Citation: 35 Tex. 756
• Parties: MARY B. TROUSDALE v. J. TROUSDALE'S EXECUTORS.
• Court: Texas Supreme Court

35 Tex. 756

MARY B. TROUSDALE

v.J. TROUSDALE'S EXECUTORS.

Supreme Court of Texas.

1871.

1. A testator's widow is not entitled to have the “year's allowance” assigned to her out of the estate, when the will of the testator has already made adequate provision for her in lieu of the year's allowance. (In the present case the will did not expressly state the legacies to the widow to be in lieu of her year's allowance.)

2. The district court erred by confirming an executor's sale of real estate, when the sale was made on one day and the published advertisement of the sale designated a different day of sale.

3. A district court (sitting in probate) having erroneously confirmed an executor's sale of real estate, made on a different day than that advertised, as appears by the transcript, the counsel for the appellee in this court suggested that in fact the sale was made on the day advertised, and moved that a writ issue from this court directing the district clerk to permit the newspaper publisher to make return of the advertisement under which the sale was really made, and further directing the said clerk thereupon to certify to this court a transcript of such corrected proof of publication. Held, that the motion cannot be allowed, as it would be an exercise of an original jurisdiction not pertaining to this court.

APPEAL from Fayette. Tried below before the Hon. I. B. McFarland.

John Trousdale, the testator, bequeathed to his wife, the appellant, his homestead place during her natural life, and gave her absolutely all the household and kitchen furniture, except such as should be specifically bequeathed to others, together with two horses or mules of her selection out of his stock, twenty head of cattle, twenty of sheep, twenty hogs, a wagon and harness for two horses, four hundred dollars in money, and “a sufficient amount of corn and meat to supply her for one year.” The remainder of his estate he bequeathed to his children. The will made no mention of the statutory allowance to widows. The other material facts are fully stated in the opinion of the court.

Jarmon & Cross, for the appellant.

Moore & Ledbetter, for the appellees. There is but a single point in this appeal from the confirmation of the sale by the district court of Fayette county. That arises from the absence of the published notice of sale. The court will observe that the day of sale in the original order and publication had been changed by the court, and the sale ordered to take place on the first Tuesday in August, 1871, instead of the first Tuesday in July, 1871, as by the first order.

It was under this amended order that sale did take place (Sayles, Probate Laws, § 250, page 107); and it is very certain that the publication of the sale, as returned by the publisher, was that which was changed by the court and a new day assigned for the sale. Hence it is evident that the publisher failed to make return of the publication under which the sale did take place. Certainly it will not be held, for this irregularity, that the sale and confirmation must be set aside.

The order of confirmation cures every such irregularity in the return. Wells v. Mills, 22 Tex. 302; Yerby v. Hill, 16 Tex. 376; Brown v. Christie, 27 Tex. 73; note b, p. 104, and note b, p. 105, Sayles, Probate Laws; Alexander v. Maverick, 18 Tex. 179. In Wells v. Mills, and Yerby v. Hill, cited above, the court say that the confirmation or rejection by the court of the sale is a discretion, confided to the district judge and not subject to revision. The same principle is announced that mere irregularities, even where no publication has been given, are not sufficient to set aside a sale. Howard v. North, 5 Tex. 307. The court say in this case, the want of notice does not invalidate the sale. Pas. Dig. note 867, p. 621.

In the case at bar the executors, under the will, were clothed with ample power to make the sale, without the intervention of the court. But, as the record exhibits, every step of the executor has been contested by this appellant, and he...