Zwernemann v. Rosenburg

• Decision Date: 14 March 1890
• Citation: 13 S.W. 485
• Parties: ZWERNEMANN <I>v.</I> VON ROSENBURG. BRAU <I>et al.</I> <I>v.</I> SAME.
• Court: Texas Supreme Court

13 S.W. 485

ZWERNEMANN

v. VON ROSENBURG.

BRAU et al. v. SAME.

Supreme Court of Texas.

March 14, 1890.

On rehearing. For former report, see 11 S. W. Rep. 150.

Brown & Dunn, for appellant and plaintiffs in error. Moore, Duncan & Meerscheidt, for appellee and defendant in error.

GAINES, J.

At the last term of the court, at this place, an opinion was delivered in these cases, (11 S. W. Rep. 150,) and a judgment entered reversing the decree of the lower court, and remanding the cause. The appeal and the writ of error were by different parties, from the same judgment. Within the 15 days the appellant and the plaintiffs in error practically joined the appellee, who was also the defendant in error, in a motion to set aside the judgment of reversal, and to grant a rehearing, waiving the error for which the judgment had been reversed. That error was in proceeding to judgment in behalf of appellee, who was plaintiff below, without proof that no other debts except his own existed against the estate of the defendants' ancestor. The object of the waiver was to obtain a decision of the courts upon the merits of the case.

The plaintiff below, as a creditor of one J. C. Brau, deceased, sought to recover of plaintiffs in error and the wards of appellant on the ground that, as children and heirs of the decedent, they had received property belonging to his estate subject to the payment of his debts. The trial judge filed his conclusions of fact and law, the substance of which is correctly stated in appellant's brief as follows: "First. That J. C. Brau did make the said notes as alleged by plaintiff; that plaintiff is the owner of them; and that there is due him on said notes $730.78, — a community debt. Second. That J. C. Brau died at his home in Fayette county, Tex., September, 1883, and Caroline Brau died at said home March 7, 1885. Third. That said J. C. Brau and Caroline Brau were husband and wife, heads of a family consisting of themselves and their children, the defendants Henry, Amelia, Conrad, Dorothea, John, Albert, Augusta, and Robert, and lived together as a family on said land, it being their homestead of 151 acres, and that they had no other land or homestead. Fourth. That, after J. C. Brau died, his widow, Caroline Brau, continued until her death to occupy said land as a homestead with her children, whose names, ages, and sexes are as follows, viz.: Henry, a male, 26 years old; Amelia, a female, 24 years old; Conrad, a male, 23 years old; Dorothea, a female, 20 years old; John, a male, 16 years old; Albert, a male, 14 years old; Augusta, a female, 12 years old; and Robert, a male, 8 years old. Fifth. That all said children lived with their father and mother, as a family, on said homestead until the father died, and afterwards with their mother till she died, except Amelia, who married and moved off between the dates of her father's and mother's deaths. Sixth. That, after the mother died, said children, except Amelia, continued to live on said homestead as a family, and they have no other homestead, nor did their mother before her death acquire any other homestead. Seventh. That both J. C. and Caroline Brau died intestate and insolvent. Eighth. That Caroline qualified as community survivor in the county court of Fayette county; that all the estate was community, and, except $720 in money and cotton, was exempt property; that said $720 in money and cotton was paid by Caroline before her death as follows, viz.: $595 to the extinguishing in part of vendor's liens — valid debts — on said homestead, and the balance to the extinguishment of valid debts against the community estate, such as medicines and medical bill incurred in last sickness, and funeral expenses, of the husband. Ninth. That, of said community property, only the following came into the hands of said children, viz.: (1) The homestead, worth $1,820.67; (2) two horses, worth $100; (3) ten head of cattle, worth $80; (4) twenty hogs, worth $60; (5) farming tools, worth $65; (6) wagon and harness, worth $40; (7) buggy and harness, worth $30; (8) household and kitchen furniture, worth $130, — and that all of it would have been exempt by law from sale for the payment of any debt of the estate of either J. C. Brau or Caroline Brau, whose estates were insolvent. Tenth. That there are other valid and subsisting community debts unsatisfied against the estates of J. C. and Caroline Brau besides that of plaintiff, but the amount is not shown by the evidence. Eleventh. That there is a duly-opened guardianship on the estates of John, Albert, Augusta, and Robert Brau in the county court of Fayette county, and M. Zwernemann, defendant, is guardian, who qualified May 15, 1885; but no order has been made in the county court concerning the occupancy of the homestead, nor has any been applied for." Upon these facts the court concluded, as a matter of law, that the minor defendants were entitled to the use of the homestead during their minority, but that, subject to this use, the inheritance of each of the defendants in the property was liable to sale for the payment of the ancestor's debt. Judgment was rendered accordingly. For the purposes of this opinion, the details of the judgment need not be stated.

We are of opinion that the court erred in holding that the defendants inherited the homestead charged with the payment of their father's debts. The constitutional provision which regulates the descent of the homestead reads as follows: "On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution; but it shall not be partitioned among the heirs of the deceased during the life-time of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same." Const. art. 16, § 52. It having been decided, under the probate act of 1848, that in insolvent estates the widow and minor children took an absolute title to the homestead to the exclusion of the adult heirs, (Horn v. Arnold, 52 Tex. 161,) it was probably the purpose of this provision to prevent a repetition of that legislation. It is clear that it was not intended to determine the disposition of the homestead after the death of the owner, as between his heirs and his creditors, further than to designate it as a home for the surviving husband or wife and for the minor children, under the prescribed limitations. In the previous constitutions of the state the disposition of the homestead after the death of the owner was left wholly to the wisdom of the legislature. It is so, also, in the present constitution, except as to the manner of its descent, and the use reserved to the surviving spouse and the minor children. The language, "shall descend and vest as other property of the deceased," was employed, we think, to determine the persons who should take, and their respective interests, but not the conditions which were to be imposed upon the inheritance. It was not, in our opinion, intended that the homestead should descend charged with the payment of debts, as other property. When the present constitution was adopted, the policy of exempting from administration for the payment of debts such property of the decedent as had been exempt from forced sale during his life-time had been steadily pursued by our legislatures. In this we have found "no variableness, nor shadow of a turning." First, by the act of the 9th of January, 1843, it was provided that "the same amount of property and the same kind, if so much belong to the estate in kind, that is exempt from sale under fleri facias or execution * * * be, and the same is hereby, declared to be exempt from sale by order of any probate court." By the law of 1846 the exemption was enlarged by providing that, in the event there should not be among the effects of the deceased all of the specific articles exempt from forced sale by the constitution and laws of the state, a sale of sufficient property should be ordered, in order to purchase such articles for the use of the widow and children. Pasch. Dig. art. 1305, note 481. The rights of the widow and children were still further enlarged by the act of March 20, 1848; and in Green v. Crow, 17 Tex. 180, it was held that under that act, in case of an insolvent estate, the widow and children took an absolute title to the exempt property set apart to them. The probate law of 1870 seems to give emphasis to the provision that, as a rule, creditors have no claim upon the property of a decedent previously exempt from forced sale, by prescribing that, in case a constituent of the family survive, such property "does not form any part of the estate of a deceased person." In Scott v. Cunningham, 60 Tex. 566, this provision was given a construction in harmony with the former laws upon the same subject. This was the law in force when the existing constitution took effect. In our opinion, it was not repugnant to any provision of that instrument, and therefore continued in force until repealed by subsequent legislation. Under none of the laws cited was the exempt property subject to be sold by the order of the court of probate in case a constituent of the decedent's family survived.

When we turn to our existing statutes, the intention of the legislature is clear. Article 1993 of the Revised Statutes reads as follows: "At the first term of the court after an inventory, appraisement, and list of claims have been returned, it shall be the duty of the court, by an order entered upon the minutes, to set apart, for the use and benefit of the widow and minor children and unmarried daughters remaining with the family of the deceased, all such property of the estate as may be exempt from execution or...