24 S.W.2d 440 | Tex. App. | 1930
Appellant's first and second propositions present, in effect, for determination, the priority of claim to the land between the bank and the administrator and guardian. The appellant contends that there was error in the judgment of the district court in foreclosing the attachment lien claimed by the bank, because (1) the minor children of L. T. Stanley, deceased, were legally entitled to take the land in suit as homestead or as property free from all claims of creditors, including the attachment lien, and (2) the order of the probate court setting aside the land to the minor children to use and occupy as a homestead was conclusive and must stand until set aside, and may not be attacked collaterally. If the property were the homestead of L. T. Stanley at the time of the levy of the attachment, then, under the Constitution and the laws of this state, the attachment lien upon the land was absolutely void and could not be made valid. Section 50, art. 16, Const.; article 3832, R.S. And it is the established rule in this state that, in virtue of the constitution and laws of this state, the homestead on the death of the owner descends and vests absolutely in the heirs if a constituent member of the family survives, and is not assets subject to the payment of the simple debts of the decedent. Section 52, art. 16, Const.; article 3499 R.S.; Cameron v. Morris,
The second point cannot be sustained, as the jurisdiction of the district court was not terminated by the death of L. T. Stanley and it was empowered to proceed to judgment, as was done. Farmers'
Merchants' Nat. Bank v. Jones (Tex.Civ.App.)
By the third proposition the appellant urges that there was no evidence to show abandonment of the homestead. It is believed the circumstances warranted the trial court in finding as a fact, as must be presumed he did, that L. T. Stanley had abandoned the use of the land as homestead. He moved from the land after divorce in 1922, and went into another state and continuously resided there until his death. His children were awarded to the custody of the mother, and resided with her in Chicago. There were no acts indicating an intention to further use the property as homestead. The mules left on the place were sold to Mr. Eddins, and there was no further farming or use and no improvement of any kind made on the land. This court could not say as a matter of pure law that there was no intention to abandon the land as homestead.
The judgment is affirmed.