Wife v. Wheeler

• Decision Date: 01 January 1851
• Citation: 7 Tex. 13
• Parties: WOOD AND WIFE v. WHEELER. (Note 3.)
• Court: Texas Supreme Court

7 Tex. 13

WOOD AND WIFE

v.WHEELER. (Note 3.)

Supreme Court of Texas.

1851.

It is not error to permit a judgment to be amended after a motion to set it aside has been overruled and notice of appeal entered; until the expiration of the term, the court has authority to amend, reverse, or annul its judgments, as well upon material as immaterial points--upon the merits, as well as upon matters of form.(Note 4.)

The twenty-sixth section of the probate act of 1846 authorized and required the Probate Court to set apart, for the sole use and benefit of the widow and children of the deceased, not only the homestead secured by the Constitution as against debts contracted after the 16th of February, 1846, but also the homestead and other articles exempted from forced sale by the act of the 26th of January, 1839, as against debts contracted subsequent to the passage of the latter act.

At the death of the husband, the surviving wife becomes the head of the family, and in the absence of the act requiring the Probate Court to set apart certain property for the sole use and benefit of herself and children, she would nevertheless be entitled to retain out of the community property the homestead and other property which is exempted from forced sale.(Note 5.)

There is as much necessity to settle by administration the estate, both common and separate, of a deceased wife as that of a deceased husband.

Husband and wife are not one under our laws; the existence of the wife is not merged in that of the husband.Most certainly is this true so far as the rights of property are concerned.They are distinct persons as to their estates; when property is in question, he is not a baron, nor is she covert, if by the former is meant a lord and master, and by the latter a dependent creature under protection and influence.

The one hundred and second section of the act of 1848(art. 1211) must be construed with reference to existing laws on the subject of exemptions; and be its expressions or constructions what they may, they cannot affect the homestead guaranteed by the Constitution to every head of a family.

Where the succession is composed of the separate property of the deceased, a statutory provision would be required to designate and exempt from execution (or administration) a portion of the estate for the sole use of the survivor.

The impolicy of placing a limitation on the value of a homestead exemption.

By the statute of 1839 the limitation of the value of the homestead, if in a city or town, is restricted to the improvements, whereas by the Constitution the valuation is placed on the lots themselves.

Where the improvements of a homestead claimed under the act of 1839, within the limits of a city or town, exceed in value five hundred dollars, the best practice in most cases would be to give the grantee the election to pay the excess, and thus retain the homestead; and if in a fixed time this were not paid, to appraise and sell the lot and improvements separately, and from the proceeds pay the owner the appraised value of the lot, and the additional sum of five hundred dollars, the remaining portion of the fund to be subject to the liabilities of the debtor.(Note 6.)

Debts are divisible in relation to the homestead exemption into three classes: 1st.Those contracted prior to the 26th of January, 1839, against which no exemption can be claimed; 2d.Such as accrued before the 16th of February, 1846, which do not attach on the property exempted by the statute of 1839; and, 3d.Debts posterior to the 16th of February, 1846, from which the homestead guaranteed by the Constitution is exempted.

When the amount of property which will satisfy the exemption of the statute of 1839 is separated from the mass of the debtor's effects, the excess is subject to debts of a date anterior to the 16th of February, 1846.But demands of a subsequent date are postponed not only until the amount of the statutory, but also that of the constitutional, exemption is detached.The grant to the head of the family by statute, when exhausted as against debts prior to the 16th of February, 1846, is further enlarged by the constitutional provision as against debts subsequent to that date.And it is only when the measure of the Constitution is full that the latter debts can attach on the property.

Quere where an estate is insolvent, whether all the debts are first chargeable on the excess beyond exemptions allowed by the Constitution and by statute, to be paid pro rata to the extent of the fund, thus leaving the portion of the debts accruing anterior to the 16th of February, 1846, which remains unpaid the only charge to which the homestead and other exempted property can be subjected, or whether the excess beyond the exemption allowed by the act of 1839 will be subjected, in the first instance, to the payment of debts contracted anterior to the 16th of February, 1846.

Quere whether an appeal from a general order or decree of the Probate Court inures to the benefit of all persons who stand in the same relation to the estate which is occupied by the appellant.

Appeal from Washington.Williamson McMassie, the former husband of Mrs. Wood, died in 1847.The estate was insolvent, and, upon the application of the widow and child of the deceased, a house and town lot, appraised at $2,000, together with all other property exempted by law from forced sale, were set apart for their sole use and benefit by the Probate Court.Wheeler was a creditor of the estate by a debt contracted in 1845, and he appealed to the District Court.In the District Court the order of the Probate Court was reversed, and the house and lot were adjudged to be subject to the said claim, and to all other debts contracted by the deceased anterior to the 16th day of February, 1846.This decree was subsequently amended by adjudging the widow and child to be entitled, out of the proceeds of the house and lot, to the sum of five hundred dollars; and it was further decreed that the house and lot were assets in the hands of the administrator, subject to the debts of the deceased contracted prior to the 16th of February, 1846.In the meantime, however, the appellants had made a motion to set aside the first decree, which motion had been overruled, and the appellants had given notice of appeal.The appellants excepted to the amendment of the judgment after the motion to set it aside had been overruled and notice of appeal had been given.The errors assigned were--

1st.In permitting the first judgment to be amended.

2d.In rendering the final judgment as amended.

3d.In overruling the motion for a new trial.

4th.The judgment of the court is contrary to law.

J. Sayles, for appellants.

I.The judgment of the District Court is erroneous.The debt of Wheeler was contracted in 1845.By the act of January, 1839, (Hart. Dig., 1270,) a town lot, including homestead, was exempt from forced sale, and, by the probate law of 1843, (Hart. Dig., 1061,) was allotted to the widow.The same provision is made by the act of 1846.(Hart. Dig., 1107.)When this debt was contracted this property was not subject to a forced sale, and was expressly ordered to be set apart for the widow.

II.Even if the property had been subject to this claim, the order of the District Court is erroneous.It makes this property assets in the hands of the administrator, to be applied exclusively to the payment of this debt and other similar ones.The holders of claims due prior to February, 1846, are by this decree authorized to have this particular property sold and applied to the payment of their debts, without first exhausting the remaining assets or without making a pro rata application of the entire assets.

III.The effect of the decree is manifestly unjust, forcing in this instance the sale of the homestead for prior debts, which might be nearly extinguished by a pro rata application of the entire assets of the estate.The spirit of the Constitution and laws (admitting the homestead to be subject to the debt) ought to be carried out.All that a creditor could claim is, that the homestead should be subject to his demand after the other assets had been exhausted.

Durant, for appellee.We contend that the decree of the Probate Court was erroneous, and that the District Court was correct in annulling it.It is plain that the exception relates only to debts, in the words of the statute, contracted after the 16th February, 1846.The amended decree of the District Court gives to the widow all her rights.

J. Webb and J. Willie, also for appellee.

HEMPHILL, Ch. J.

The first ground assigned for error is, in permitting the judgment to be amended after a motion to set aside said judgment had been overruled, and an appeal taken.

We do not conceive that in this action the court exceeded its just authority.The term had not expired, and the power of the court over its judgments rendered during the term had not been exhausted.Until the expiration of the term, the court had competent authority to amend, reverse, or annul its judgments, as well upon material as immaterial points--upon the merits, as well as for matters of form.

We come now to the second assignment, viz, that there is error in the judgment as finally rendered.

The Probate Court had set apart for the use of the widow and child of the deceased a house and town lot and such specific articles as are exempt by law from forced sale under execution.On appeal by a creditor, who is the appellee in this court, and whose claim accrued before the 16th February, 1846, the District Court reversed the decree, and adjudged the house and lot to be subject to the said claim and to all other debts contracted by the deceased anterior to the 16th February, 1846.This decree was subsequently amended by adjudging the widow and child to be entitled, out of the proceeds of the house and lot, to the sum of five hundred dollars; and it was further decreed that the house and lot were assets in the hands...