Youngblood v. Youngblood

• Decision Date: 28 January 1932
• Docket Number: No. 1100.,1100.
• Parties: YOUNGBLOOD v. YOUNGBLOOD et al.
• Court: Texas Court of Appeals

46 S.W.2d 390

YOUNGBLOOD v. YOUNGBLOOD et al.

No. 1100.

Court of Civil Appeals of Texas. Waco.

January 28, 1932.

Rehearing Denied February 18, 1932.

Appeal from District Court, Ellis County; Tom J. Ball, Judge.

Suit by Mrs. Litt Youngblood against Herman Youngblood and others. From the judgment rendered, plaintiff appeals.

Affirmed.

J. T. Spencer and J. C. Lumpkins, both of Waxahachie, for appellant.

W. V. Dunnam, of Waco, Walter S. Jones, of Ennis, and Farrar & Stovall, of Waxahachie, for appellees.

GALLAGHER, C. J.

This suit was instituted by appellant, Mrs. Litt Youngblood, against Herman Youngblood, hereinafter called appellee, and others, to establish her right as surviving wife of W. F. Youngblood, deceased, to the use and occupancy as a homestead of 152¼ acres of land which she alleged was the separate property of the deceased at the time of his death, and to cancel, so far as the same might in any way interfere with her homestead rights, a certain deed by which the deceased conveyed 40 acres thereof to said Herman Youngblood. She expressly disclaimed any right in or title to the fee in said lands. She alleged that 53 acres of said land was separated from the remaining 99¼ acres by a public road. Appellee Herman Youngblood filed a general denial, and specially denied that the deceased ever resided upon the 99¼ acre tract or that he ever intended to use or used the same for homestead purposes. He further alleged that the deceased, W. F. Youngblood, was his father; that he had, long before his marriage to appellant, who was his second wife, made to him a parol gift or sale of 40 acres off the west end of said 99¼ acre tract; that, relying on such gift, he in good faith moved onto said land, took actual possession thereof, made valuable and permanent improvements thereon, and in every way complied with the conditions of such gift or sale. He further alleged that thereafter, on the 13th day of September, 1927, his said father executed and delivered to him a regular conveyance of said property, and that said deed was intended to ratify and confirm such prior parol sale or gift of said land. He further alleged that his said father left a last will and testament; that the same had been duly probated; that by the terms thereof the testator devised to appellant a life estate in the 53-acre tract, and thereby recognized her homestead right therein; that the testator further devised to him the 40 acres of land off the west end of said 99¼ acre tract, so claimed by him, and the remainder of said tract to him and his brothers and sisters, all of whom were children of the testator's first marriage. Appellee further alleged that appellant had accepted the terms of said will and elected to take the property devised to her therein, and was therefore estopped to claim homestead rights in said 99¼ acre tract. The other defendants in said suit, who are also appellees herein, answered by general denial, and a part of them, not necessary to mention by name, adopted the answer of appellee Herman Youngblood.

The case was submitted to a jury on special issues, and upon the verdict returned the court rendered judgment recognizing and establishing appellant's homestead rights in and to the 53-acre tract and denying her homestead claim to the 99¼ acre tract. The court rendered a further judgment awarding to appellee Herman Youngblood a recovery against all the other parties to the suit of the particular 40 acres of land off the west side of said 99¼ acre tract claimed by him. The court further adjudged the costs of suit against appellant.

Opinion.

Appellant presents assignments of error complaining of the refusal of the court to instruct the jury peremptorily to return a verdict in her favor. The deceased, W. F. Youngblood, was a farmer. He was twice married. He had ten children by his first marriage and none by his second. He formerly resided on a tract of land containing approximately 130 acres and used the same for homestead purposes. He also owned several other small tracts, the size and location of which are immaterial. He purchased the 53-acre tract involved in this suit in 1894, moved onto the same in 1906, and resided thereon continuously until his death, which occurred January 26, 1929. He purchased the 99¼ acre tract involved herein in 1910. It lay immediately north of the 53-acre tract, but was separated therefrom by a public road. At the time of the purchase of said last-named tract he was over sixty years of age and was not engaged personally in active work on his lands, but kept the same rented to sons or sons-in-law for a part of the crops raised thereon. His daughter Annie had recently married one Southard. He stated that his purpose in purchasing said 99¼ acre tract was to provide a place close to his home for her and her husband to live upon so that she could be near and help her mother, who was in bad health. He immediately made some additional improvements on this tract and his said daughter and her husband moved thereon and remained until about 1922. Appellee cultivated a part of said tract during the time it was occupied by the Southards. When they moved away he bought from them some improvements they had made thereon and afterwards made further improvements at his own expense. He cultivated both that tract and the 53-acre tract from that time until his father's death in January, 1929. W. F. Youngblood never cultivated crops on any part of the 99¼ acre tract either in person or by hired labor. There is testimony, however, that he reserved a part of the fruit from an orchard thereon, and that he had a small truck patch or garden thereon. W. F. Youngblood's first wife died December 26, 1915. He married appellant April 19, 1917. Prior to his second marriage he, at the suggestion of appellant, had a full settlement of the community estate with his children. As a part of such settlement they conveyed to him in severalty as his share of the community land the said 53 and 99¼ acre tracts. No change was made in the manner of occupancy and use of either tract. He continued to rent the 99¼ acre tract for part of the crops. The rent cotton was sold and the money placed to his credit in the bank. The rent corn, oats, and sorghum were delivered to him at his home and used for feeding his stock. More than a year before his death he executed a will, which was duly probated. The terms of the same were substantially as alleged by appellee. The testator referred therein to the 53-acre tract, on which he resided, as his homestead. He bequeathed therein certain personal property to appellant. Said will bore the same date as his deed to appellee, conveying the 40 acres off the west end of the 99¼ acre tract, as alleged in appellee's answer and cross-action. He declared in said deed that said tract was no part of his homestead and was not used and occupied as such. Appellant herself introduced said deed in evidence without reservation.

The general rule is that whether segregated tracts of land constitute part of the homestead is a question of fact to be determined from all the evidence, and that two requisites must concur to give them such quality; such requisites being that the owner must intend such tracts to be a part of his homestead, and must in some way use them as such. Andrews v. Hagadon, 54 Tex. 571, 576; Keith v. Hyndman, 57 Tex. 425, 430; Cocke v. Conquest (Tex. Com. App.) 13 S.W.(2d) 348, 349; Id. (Tex. Sup.) 35 S.W.(2d) 673, 674 et seq.; Johnson v. Russell (Tex. Civ. App.) 220 S. W. 352, 353, par. 2 (writ refused) and authorities there cited; Speer's Marital Rights (3rd Ed.) p. 555, § 462; Id., p. 556, et seq., sec. 463. Cocke v. Conquest, supra, is the latest expression from our Supreme Court and is expressly based on an affirmative finding of actual homestead use made by the trial court and approved by the Court of Civil Appeals.

Appellant contends that W. F. Youngblood retained his homestead right in and to the 130-acre tract from which he moved in 1906 to the 53-acre tract, on which he resided at the time of the partition between him and his children ten years later. The testimony shows affirmatively that all his lands other than the 53-acre tract were during said years rented to his children and others for a part of the crops. The testimony is very vague concerning...