44 Tex. 174 | Tex. | 1875
In 1864 J. P. Smith and Margaret Smith, husband and wife, were the owners of certain property situated in the town of Tyler, which was community property. In that year the wife died, leaving plaintiffs, her children and heirs surviving.
There was no regular administration on the wife’s estate, and no debts are shown to have existed against the community. On the 15th day of November, 1866, J. P. Smith, the surviving husband, filed in the probate court of Smith county an inventory and appraisement of the community estate of himself and deceased wife, and on the 16th day of November, 1866, he sold and conveyed the property in controversy to defendants for the sum of about $1,700, gold.
The entire property of the estate, as shown by the inventory, amounted to $2,307. At the date of the sale by Smith some of the children were adults and some minors.
It is alleged in the pleadings and contended for by plaintiffs, 1st, that there is no authority in a survivor under the law to sell the community estate until the inventory and appraisement has been filed and approved or acted on by the probate court; 2d, that supposing the law to have been complied with in this respect, Smith’s object in making the sale was to defraud his children, and that defendants knew this fact; and 3d, that there is no power in the surviving husband to sell the homestead so long as there are minor children residing with him on said homestead.
The first of these propositions involves the construction of the 3d section of the act of 1856 amendatory of the marital rights act of 1848. (Paschal’s Dig., art. 4648.)
So much of that section as is important to notice reads thus:
"It shall he the duty of the surviving husband, at the death of his wife, if she have a surviving child or children, to file in the county court a full, fair, and complete inventory and appraisement of all the community property of himself and his deceased wife, to be taken and recorded as in cases of administration, and to have- the same force and)
It is contended that the latter clause of the law as quoted is to be construed literally and strictly, and that the authority of the husband to sell did not attach until after the probate court had “ recorded ” the inventory and appraisement.
It must be borne in mind that the surviving husband had the right to sell the community property to ¡Day debts ¡against the community, after the death of the wife, without the aid of this statute. (Jones v. Jones, 15 Tex., 147.)
It was clearly not the intention of the Legislature to throw restrictions around the survivor in such cases, but to enlarge their powers.
There is no express approval of the inventory required by the court. It must be “ recorded,” and no valid reason is perceived “why the “recording” could not have been done as well when it was filed by the clerk as to have waited for the meeting of the probate court. If it was not correct no one was bound by it, and an additional one could have been required at any time thereafter. It is believed that the view contended for is too restricted, and that the statute in question should receive a more liberal construction.
The third point contended for is not tenable. It is not now regarded as an open question. We are asked by counsel to treat it as an open question, and to review the former rulings of this court; but as we are of opinion that this would not lead to any beneficial or different results we decline to do so. (Johnson v. Taylor, 43 Tex., 121; Brewer
We are aware that this view of the law places the destinies and fortunes of the offspring in the power of the father, but in forming general laws and rules it is questionable whether any safer or more disinterested custodian of the rights and welfare of the child has ever been devised than that of the father. That this rule is liable to abuse is not a sound argument against it.
The second point, viewing them in inverse order, is that the sale was made to defraud plaintiffs, and that defendants knew this fact. This is not borne out by the facts. The proof offered to sustain this allegation is too weak and remote to even go to the jury, without an offer to bring it home to defendants in a more direct way.
This view of the facts will also dispose of the motion for a new trial. The affidavit of Greer, if it had been before the court, could not have changed the result.
The statement that Smith’s conduct was generally known in the community is too general.
His conduct, indeed, seems to have been far from exemplary, but unless the fact alleged, that he was trying to defraud his children, was brought home to the purchasers before they bought, his general conduct could not affect the sale. We see no error in the case for which the judgment should be reversed. This is the judgment of a majority of the court; the writer, however, regrets to find himself constrained to differ with his brothers in this case.
My views are, without argument—
1. That this act of 1856 did not change the law of descents, and that at the date of the sale by Smith the adult heirs were entitled to their share of the mother’s estate as it then existed, and that there was no power in the father to change, sell, or in any manner dispose of it, except to pay debts against the community.
2. That the law means what it says, “after which,” that
Affirmed.
Chief Justice Roberts did not sit in this case.
