Ward v. Hinkle
| Decision Date | 25 June 1928 |
| Docket Number | (No. 4017.) |
| Citation | 8 S.W.2d 641 |
| Parties | WARD et al. v. HINKLE et al. |
| Court | Texas Supreme Court |
Warren & Conn, of Houston, for plaintiffs in error.
A. E. Masterson, of Angleton, and Burgess, Owsley, Storey & Stewart and George T. Burgess, all of Dallas, for defendants in error.
Statement of the Case.
The property in controversy in this suit, 100 acres of land located in Brazoria county, was the homestead of Ben Ward and his wife, Louisa, negroes, and was occupied as such by them from about 1876 until their respective deaths. The suit was brought by the surviving children of Ben and Louisa Ward and by the children of two of their deceased daughters.
Ben Ward died in 1892 intestate, and no administration was had on his estate. After his death, his wife, Louisa, continued to reside on the old homestead with her children, who remained with her, including an unmarried daughter, until her death. When Louisa died there were still living seven children of herself and Ben Ward, and a number of children of Amanda Lee and Neeley Williams, two of the original Ward children, who had married, had families, and died. These grandchildren were many in number, the names of whom appear in the petition, but it is unnecessary to here set them out in this opinion.
The Constitution and laws of this state, from the time Ben Ward first bought 50 acres of land on February 14, 1876, to his death, and to the death of Louisa, had declared in plain language that the homestead could not be subjected to the payment of ordinary debts, and that upon the death of Ben Ward the homestead should pass to his wife, and upon her death to their children, free from claims of ordinary creditors. They likewise provided that if an unmarried daughter survived, the homestead could not be partitioned so long as she elected to occupy it. Const. art. 16, §§ 50, 52; R. S. arts. 3485, 3488, 3494, 3496, 3499; Cline v. Niblo (Tex. Sup.) 8 S.W.(2d) 633, this day decided, but not yet [officially] reported.
Notwithstanding the constitutional and statutory inhibitions, the homestead of these two old negroes has been subjected to the payment of an ordinary justice court judgment, the children deprived of one-half of it, and the land subjected to partition. Everything which the Constitution and statutes have declared should not be done has been done, and the real inquiry is whether or not this has all been accomplished in such a manner as is consistent with the rules of law, or if not, whether the parties plaintiff are in position to legally complain.
It is apparent from the undisputed evidence that during the lifetime of Ben and Louisa segregated places on the 100-acre homestead were assigned to each of the four boys, Andrew, Tom, Anthony, and Christopher; that they each went into possession of the tracts respectively assigned them, fenced the same, built their houses thereon, improved, cultivated, and enjoyed the same for periods of time running as far back as 25 years before the death of Louisa Ward. The improvements were real, substantial, and, considering the station in life of their occupants, valuable.
Louisa Ward made a will, a part of the record in this case, as well as of the original probate proceedings. This will reads as follows:
(Italics ours.)
It is, we think, a reasonable conclusion, considering the facts testified to by the witnesses, that the real purpose of this will was to secure to Andrew Ward and his brothers the lands previously given them during the lifetime of their father, and on which they had settled, made improvements, and raised their families, or, as one of them testified, on which their father had "sot them," and to give to the old unmarried daughter, Martha and the children of the two deceased daughters, land substantially the same in amount as had been previously given to the four boys.
This, then, was the status of the estate when Louisa died: Segregated tracts of land out of the 100 acres had been assigned to each of the four boys, whereon they had built their homes and reared their families. Two of the girls were dead, leaving surviving them many children, one daughter, Francis Gee, married and living on an adjoining tract of land with her husband, Rhoda Lee, a married daughter, not living on the place, and an unmarried daughter, Martha, more than 60 years old, living on the old homestead, where she had lived all the days of her life. When Louisa, the mother, died, there was a small justice court judgment in the amount of $110 against her. The Ward heirs did not willingly produce the will for probate, but counsel for the judgment creditor caused some of them to be cited and required them to produce the will for probate, and he filed the application for probate of the will. The will was probated, or rather an administration was granted with the will annexed. The justice court judgment was filed as a claim with the administrator, approved by him, and the old homestead ordered sold for its payment. There was not any contention, and there is no contention here, that this justice court judgment was within any of the exceptions to the homestead exemption. In fact, counsel who brought about the probate of the will and the administration of the estate in his testimony said:
"I will say this: If I had known there was any constituent member of Louisa Ward's family who claimed that as a homestead, I would not have applied."
The land was sold under the order of the probate court, and bought by John G. Smith on June 7, 1911. Deed was executed August 11, 1911. On November 1, 1912, Smith deeded the land to Hinkle, the defendant in error in this proceeding. The order of sale of the probate court is not copied in the record, but reference is made to it in the deed from the administrator to Smith. This deed refers to the order of sale and the report of sale. It describes the land as being the same land as that described "in said orders and decrees and more fully described as follows, to wit, an undivided one-half of one hundred acres (100) of land in the John McCloskey League, between the San Bernard river and Cedar Lake, in Brazoria county, Texas, with the improvements thereon, and being the 100 acres owned by Ben Ward, deceased, and Louisa Ward, deceased, as community property, and which constituted the homestead of said Ben Ward and said Louisa Ward for a number of years." It will be noted that the property is described in this deed, and apparently in the orders of the probate court forming the basis of the deed, as land "which constituted the homestead of said Ben Ward and said Louisa Ward for a number of years." This description is consistent with the express, declarations shown in the will, which we have copied, that this land was the homestead of Louisa Ward at that very time. This same deed, in continuing the description, after having referred to the deed records contains this language:
"Meaning and intending, however, the one hundred (100) acres of land in said John McCloskey League in said Brazoria county, Texas, claimed by said Ben Ward and Louisa Ward as their homestead, and which was cultivated and used by them as their homestead for a number of years, whether described in the above mentioned instruments or in other instruments."
It is to be observed that for the purpose of identifying the land conveyed with absolute certainty the subsequent clause just quoted expressly states that the land was that "claimed by Ben Ward and Louisa Ward as their homestead." The deed then expressly declares, as a further means of identification on the ground, that it was the land "which was cultivated and used by them as their homestead for a number of years." In the deed from Smith to Hinkle the land is described in exactly the same language as was used in the deed from the administrator to Smith, including the exact language which we have just quoted. In the vendor's lien notes executed by Hinkle to Smith in part payment for the land, the land is described in a similar way.
On August 5, 1913, J. V. Hinkle filed suit in...
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