Wife v. Thompson

• Decision Date: 01 January 1855
• Citation: 14 Tex. 463
• Parties: JAMES AND WIFE v. J. AND T. THOMPSON,
• Court: Texas Supreme Court

14 Tex. 463

JAMES AND WIFE

v.J. AND T. THOMPSON,

Supreme Court of Texas.

1855.

But whether the qualification appended by the court (to a charge asked) be abstract--not based on the facts as proved--or whether it be correct as a legal proposition, is not very material, as we are of opinion that the verdict was authorized by the facts, and that the justice of the case as made has been attained.

See this case as to the construction of the statute (Hart. Dig., art. 1153) allowing a year's support for the widow and minor children or either; also of the statute (Hart. Dig., art. 1154) which provides for setting aside the homestead and other property exempt by law from execution for the use of the widow and children or either. (Note 72.)

In cases of solvent estates where the family, one of whom is administrator, has cultivated the homestead for the benefit of the estate, the widow not dissenting, she cannot claim afterwards for the use and occupation of the property, unless she would show that the adult members of the family had misapplied or converted the proceeds to their own use.

Appeal from Newton.

J. M. Ardrey, for appellants.

O. M. Roberts, for appellees.

HEMPHILL, Ch. J.

This suit was brought by William James and his wife Susan, against Joseph Thompson and Thomas Thompson, to recover for the use of land, horse, and gin, in the year 1850. The original petition alleged a special contract, but by amendment the plaintiffs claimed as on a general indebitatus count in assumpsit. The leading facts of the case are that Joseph Thompson, father of the defendants, and former husband of the plaintiff Susan, died early in January, 1850, leaving land, widow, and family, some of the children being minors. The family, including the defendants, continued to live on the farm in the year 1850, and cultivated it together, as the witnesses understood, for the purpose of paying the debts of the deceased. The widow received one bale of cotton of the crop, which she used in the purchase of family supplies. Four bales were used for the discharge of a debt due by the estate. There is no evidence as to the amount of crop raised, nor as to its appropriation, except of these five bales. On the 19th April, 1850, the Probate Court directed to be set apart for the use of the widow and the minor children the homestead of two hundred acres of land, so as to include the improvements, the horse, &c. The cultivation of the farm had commenced previous to the order setting apart the homestead. Joseph Thompson, one of the defendants, had been appointed administrator in March, 1850. There is no evidence that the defendants assumed exclusive control of the farm or plantation.

The defendants during the year cleared about eight acres of the estate lands, one acre and one-half of which were included within the limits of homestead; the remainder on other lands was afterwards sold at administrator's sale.

The jury found for defendants, and the plaintiffs assign error in the charge of the court, and in refusing the motion for a new trial.

The plaintiffs requested the court to charge in effect that the widow at the death of the husband having become the head of the family, and the homestead having been assigned for the benefit of herself and minor children, was entitled to recover from any one using the property and effects of the homestead the reasonable value of such use and occupation. The court gave this with the qualication, in effect, that if she agreed or assented to the cultivation of the homestead for a particular year, the proceeds to go in payment of the debts of the estate, and the party contracting had commenced the preparation for the crop, and afterwards the premises had been set off for her benefit, she would not be entitled to recover for their use during that year.

The objection by appellants to the charge is that there was no evidence of any such contract or agreement by the widow as that referred to by the court. There is no direct proof of such fact, but the evidence leaves the impression and is to the effect that there was a mutual understanding that the family should cultivate the lands together, and that the proceeds should be applied to the payment of the debts. But whether the qualification appended by the court be abstract--not based on the facts as proved--or whether it be correct as a legal proposition, is not very material, as we are of opinion that the verdict was authorized by the facts, and that the justice of the case as made has been attained.

The appellees insist that the designation by the County Court of the homestead (including the gin and also the horse) to the use of the widow and minor children does not vest in the widow and minors any exclusive right, but that the appellees, being also children of the deceased and part of the family, had a right to use and occupy said property conjointly with the widow, especially if there was a common purpose to pay the debts of the estate by using it.

This view of the rights of appellees seems to be well supported by the law, especially under circumstances such as exist in this case. The statute of 1848 contains two provisions setting apart property to the widow and children of the deceased. By the first (Hart. Dig., art. 1153) there is to be allowed to the widow and minor children, if there be either or any, an amount sufficient for their...