Hendrix v. Hendrix

46 Tex. 6 | Tex. | 1876

Gould, Associate Justice.

The later decisions of this court have held that if, at the time of the husband’s decease, there was a homestead, the widow cannot abandon that homestead and select another out of the estate in lieu thereof. (Rogers v. Ragland, 42 Tex., 422.)

The action of the court below on the subject of the homestead was evidently based on the erroneous assumption that the widow had this right of selection, and not upon any investigation of the fact in regard to the existence or non-existence of a diifereut homestead from that selected.

So, also, the other orders appealed from, making an allowance for a year’s support and requiring the executor to deliver certain exempted articles, or, in lieu thereof, the specified value of each article, were evidently based on the erroneous assumption that the averments of the petition were to be taken as true, for want of an answer, and from the indefinite manner in which the orders are formed, it would seem that no inquiry was instituted to ascertain whether or not these exempted articles, were to be found in kind amongst " the property left by the deceased. The order of the court that the averments of the petition and amended petition be taken as true for want of an answer, and its action in basing its orders on this assumed confession of the facts therein stated, are not in accordance with the practice prevailing in proceedings in matters pertaining to estates, and are not supported by anything in the statute then in force regulating such, proceedings. This error infects all of the orders appealed from, and gives to most of them an indefinite and alternative form, which would scarcely have been adopted if they had been based, as they should have been, on the actual condition of applicant and of the property left by the deceased.

It is deemed proper to dispose of this case without intimating any opinion as to the power of the District Court, under the act of August 15, 1870, prescribing the mode of proceeding in matters of probate, to make an allowance in lieu of exempted articles not existing in kind. For aught that, appears in the record, the various exempted articles may be proved to exist in kind amongst the property left by decedent, and it may be that this and other questions suggested in the brief of appellant’s counsel, may not arise again.

For the errors which have been specified, the various orders appealed from are reversed and the cause remanded with directions to the court below, being the County Court*' to hear and dispose of the petition anew.

Reversed and remanded.