87 S.W. 1050 | Tex. App. | 1905
The subject-matter of this suit is 160 acres of land. The plaintiffs' petition contains two counts, one being *128 trespass to try title, and the other for partition. The case was submitted to the judge, who filed findings of fact and rendered judgment for the defendants.
Ferdinand Carroll and his first wife, Rosana Carroll owned 400 acres of land. She died in 1860 and he died in 1871. They had several children, and after her death he established his homestead on the 400 acres of land, where he resided at the time of his death. In 1862 he married a second time, and at the time of his death he and his second wife, and one child born of the second marriage, occupied the 400 acres of land as a homestead, and thereafter his widow and her minor daughter continued to so occupy and use the property for a number of years.
There was an administration on the estate of Ferdinand Carroll, and during its progress, and by order of the Probate Court, 40 acres of the land were sold for the purpose of paying debts. The Probate Court also entered a decree of partition, by which 200 acres of the land were set apart to the children of Ferdinand and Rosana Carroll, and 160 acres to Mrs. S.E. Carroll, the second wife, and her minor child. Mrs. S.E. Carroll is now dead, and her daughter has married, and is now Mrs. Bettie Jeffries.
The plaintiffs in this suit are the children and grandchildren of Ferdinand and Rosana Carroll, and the defendants are Mrs. Jeffries and certain others who claim under Mrs. S.E. Carroll.
The plaintiffs contend that Mrs. S.E. Carroll, the second wife, had only a life estate in the 160 acres of land, and that, she now being dead, it belongs to them and Mrs. Jeffries, and is subject to partition.
The trial judge found, as a fact, that Ferdinand Carroll was insolvent at the time of his death, and held, as matter of law, that, on account of such insolvency, his surviving wife and minor child, the moment he died, were vested with absolute title to the homestead, which included the 160 acres in controversy. The plaintiffs, who have brought the case up for revision, do not assail that conclusion of law, but do assail the finding of fact referred to. If the 40 acres of land which were sold by the administrators of Ferdinand Carroll's estate were part of his homestead at the time of his death, as held by the trial court, then he was insolvent at that time. Testimony was submitted tending sufficiently to show that the 40 acres referred to, though not at that time segregated by any survey, marked lines or otherwise, were, in fact, contiguous to the 160 acres in controversy; that Ferdinand Carroll had a mill and gin on the 40 acres which he used, and from which, in part, he derived means for the support of his family. As against creditors, this was sufficient to impress the homestead right upon the 40 acres, as well as the 160 acres upon which his residence and farm were situated.
In the brief submitted for the plaintiffs in error, it is complained that, in determining the question of solvency, the court proceeded upon the theory that Ferdinand Carroll was entitled to hold as a homestead full 200 acres of land, with the improvements thereon, regardless of the fact that he did not have absolute title thereto, but merely owned an undivided half interest in the 400 acres of land, of which the 200 acres referred to were part. The court was correct. As between Carroll and his creditors, he would have been entitled to hold as homestead the entire 200 acres, regardless of the character of his title. *129
But if, on account of improvements thereon, or for any other reason, the 160 acres upon which he resided were equal in value to the remaining 240 acres, then in right and equity, the plaintiffs were entitled to the 40 acres, and it should not have been considered as any part of Carroll's estate in determining the question of solvency. So, regardless of the question of homestead right in the 40 acres, and conceding that Carroll had no such right, if counsel for the plaintiffs in error are correct in their contention that the 160 acres were equal in value to the remaining 240 acres, then the 40 acres sold by the administrators were properly excluded by the trial court in determining the question of solvency.
No reversible error has been shown, and the judgment is affirmed.
Affirmed.
Writ of error refused.
