*1 Reports. [Tyler, nor to of his Laugklin, appellant’s knowledge with reference condition, nor with goods reference to fact that the exceeded value sum due him to appellants. The instrument stipulates, purpose grantor for the which the securing indebtedness, is un- able to pay he has sold delivered the stock goods, and cash, etc.,, ¡Nathan Henry unto the firm of Gregg composing & Gregg, Gregg course, in due sell trade for Son, them “to same cash.” empowering stipulates It further T. S. is “to Short trustee execute ¡Nathan Henry this deed of for and in the name Gregg trust, to to Gregg take them from time possession, etc.,.and actual carry from said for cash and on a retail business stock sell- regular provides course trade.” further Timpson town of in the It indebtedness the if should any, that after paying remainder, paid grantor. to the necessary
In effect of legal instrument, our view delay to hinder creditors insolvency of the grantor, The appellants. than instrument is vitiated instructions other in due a retail carry course trade and business to “seZZ regular apparent mortgagees course trade.” It is authority dispose goods only of the usual trustee have their pay permitted promptly to sell their prices. They retail are beyond the placed for an indefinite time reach surplus debt. thus Co. & 565. Gallagher Co., & v. Goldfrank of creditors. we construed in undisputed it, understand evidence, Hnder we instrument, think, recitals became, with the connection to instruct the void, jury of the court to duty mortgage declare find a verdict defendants. it should in the There is no error consequently judgment, affirmed.
Affirmed. 1891. Adopted November G. Administrator. et al. Lockett, v. Solomon
Annie
No. 7053. Husband.—Upon Homestead of Insolvent only to the family, the widow is entitled a widow rights have no land, inheres creditors This homestead. daughter. On her against In this case the husband left it as heirs. married creditors. title to land free claim of her father’s death she took mother’s rights has S. Same—Administration.—The entitled homestead when survives. Those to the where a constituent creditors, with debts and free from claims save to them take it unburdened money. purchase .552, adhered to. Case Adhered to.—-Zwernemann Laoy Administrator. 1891.] Appeal Hon. M. Hall. from Johnson. below before J. Tried *2 states case. appellant personWhen a Lacy. & for Padelford, Poindexter his wife as hopelessly dies intestate, leaving insolvent whose estate is home him, his only family surviving member of Court family having been a the Probate of said stead forms no surviving set to said proper thereof aside widow, term appropriated of said can at no estate, of the assets part decedent. And when said decedent payment of debts said who her hus daughter, him, with only surviving leaves one child, upon of her father home the death moves the old shortly band after (the with surviving her mother said' widow said stead, they family on the old no decedent) having all three live as one homestead, for when and years, about three where said homestead, other daughter only widow her said as the heir of surviving dies, leaving only daughter when said heir herself deceased husband thereafter to reside home said said continue years stead as their homestead three after the death of her mother, for when an administrator de non on her deceased bonis father’s said has not a title to said home estate, right 1817-2007, superior only to said Rev. stead heir. arts. Stats., Porter v. 61 2164, 2857; Sweeney, Texas, Griffie v. 216; Maxey, Leatherwood Texas, 58 v. 66 214; Arnold, Texas, v. 414; Green Crow, Texas, 17 et v. 21 seq.; Sossaman 181, Powell, Reeves Texas, v. 664; Petty, O’Docherty 44 v. Texas, 250; 25 v. McGloin, Texas, 71; Watson 69 Rainey, Rainey Texas, 319; Chambers, v. 56 Wil Texas, 17, seq.; et mington v. 6 Sutton, Gaskell v. Iowa, 18 46; Case, Ells 147; Iowa, v. 33 Ellsworth, 165; worth Howe v. Iowa, 525. Wis., 25 McGivens, Oreme& appellant Ramsey, Mrs. Anderson. of ÍL H. The estate being insolvent, during the pendency of the administration thereon the controversy having been to his surviv widow ing as a homestead by the Probate Court Johnson County, provided Texas, by the statute, her title thereto became absolute, took she it free from all debts intestate. Rev. Stats., art. 2002; Scott v. 60 Cunningham, Clift 566; v. 60 Texas, Kauffman, Texas, 64; v. Green 17 Reeves v. 44 Crow, 249; Texas, 188; Petty, Texas, Horn v. 52 Arnold, Texas, v. 57 161; Abney Putnam v. Young, Texas, 461; 52 Pope, Texas, Upon the Patton & of H. Bledsoe, appellee. H. Brown, ,H.
Cook, H. community said Cook and 1881, his M. wife A. Cook descended and vested as other real subject said M. right alone to A. decedent, — Reports.
192 {Tyler, then death; being which ceased at and there such con R. H. under stituent of the said Cook as the Constitution of Mrs. 1881, laws force or at the time Cook's could death, occupy said homestead free the claims of creditors, hold like other real of decedent said homestead became liable subjected debts. Const. art. 1876, 16, 50, secs. Stats., Givens v. 64 1993-2009; Hudson, Rev. arts. 52; Texas, v. 58 Rev. arts. Ashe Texas, Griffie 471; Maxey, 214; 1653, 1654; v. 71 Fagan v. 65 Duke Texas, 631; McWhirter, Yungst, 567; McCartney, v. Davis v. Shannon v. Reed, Texas, 714; Texas, 584; Roco Gray, Texas, 252; Green, A.—Appellee Section Solomon upon the
MARR, Judge, *3 this suit as administrator day 1887, brought 28th of de bonis March, deceased, of R. H. the Cook, against non of estate Mrs. appellants, the and Mrs. and her husband Diana and Lacy Anderson, against Annie G. and the children of widow, the J. W. Bouldin, Bouldin, Mrs. Susan of H. part of estate the said R. recover as the Cook lots deceased, to in city Ro. the 2, By and block Cleburne. the 6, 8, 13, Ros. 1, 3, 4, day on the 1st below, of the court rendered judgment December, Lacy administrator recovered of Mrs. plaintiff as and hus- 1888, of Mrs. Anderson lot Ro. but as to 8, lots Ros. and 1, 3, 6, band .and Bouldins, of the who were Ros. 2 and was favor finding lots by her and Lacy (joined husband) costs. Mrs. dismissed with their n appealed judgment. from the Mrs. Anderson have alone H. community of R. The before mentioned were all lots their homestead M. A. constituted and his wife Mrs. and Cook, Cook his wife and May, 1881, He the time of his death. died at heirs law. Before the only child, Annie G. as his Lacy, their they Lacy, W. D. and Annie married the father the had R. H. died. His Cook on homestead of their own when residing were surviving “constituent Mrs. M. A. the sole therefore, was Cook, wife Lacy Mrs. death of father family.” A short time after the they where land in controversy, her “moved and husband until the death of their home” Mrs. as lived as Cook one Lacy and 1885. Thereafter occurred in Cook, January, which Mrs. when there upon the and resided homestead, continued to reside wife them. judgment against was rendered below sides, upon both by is conceded counsel The court fact found, In September, of H. was and insolvent. the estate R. Cook estate, administratrix 1881, was duly County by Court an order of that year Rovember surviving' to her the homestead as controversy administratrix continued of H. deceased. She widow R. of one at the instance year 1884, until some Lacy Administrator. 1891.^ required County Court, sureties she another bond give was appellee Subsequently appears which she to do. refused duly appointed qualified de bonis non administrator final but what action the account, estate. Cook had filed her County clearly appear. Court took reference thereto does not fully had not nor at the time estate been settled administered death.
We will inter- necessary add the to show extent of the now facts part On ests Mrs. Anderson and the Bouldins of the land: 4th day Mrs. M. A. Cook and the December, appellants, 1884, Lacy Mrs. Annie 4 to husband, conveyed G. lots Hos. and W. now After deceased. the death Mrs. Cook, J. Bouldin, appellant lot Ho. 8 conveyed wife Mrs. Diana Anderson. The appellants appeal contend that the below erred in hold' court controversy any part the land in under ing be, the circumstances, H. H. of the estate of Cook, deceased, liable his consequently that have debts, ought recover purposes allowed to been of adminis- tration.
We regard presented here as determined in accord appellants’ contention the decision of
case Zwernemann there Texas, 522, rendered in favor of the administrator fore is incorrect ought to be reversed. Rev. arts. arti Under possession 1817 the administrator is not entitled to the cle of the ex *4 empted of H. H. Cook property. being The estate and the insolvent, in apart,” homestead been “set accordance with the having provisions cases, County in Court Mrs. by law such the to of as the surviv ing widow and constituent of the she took the family, same unburdened the free from the any debts of husband and claims of his with creditors. v. art. Childers v. 76 Stats., Henderson, Re 2002; Texas, 664. exemption under continuing perma This the circumstances was a and a to merely one and “adhered to the not the land,” nent homestead right present results from the terms of in the land. This the statutes the subject, and the rule under former laws. Stats., was Rev. arts. 2002, Von Zwernemann v. Scott v. Cun 2007, 1817, 1993, 2005; supra; 56 Texas, 60Texas, 566; 20; 249; Horn v. 52 ningham, 44 Texas, Arnold, Texas, 2002 Texas, 161; Crow, Green Article is unconstitu to attempts as it vest the in in only in so far fee the tional homestead the the surviving constituents of family, widow other the absolutely, of sons or married daughters, contrary the adult to the exclusion mode Case first prescribed descent and Const., of cited, the.Constitution. provision this balance of of law operative. sec. 52. The Id. art. which does not conflict the part, with remaining plainly Constitution, apart homestead the set “the widow and that children” declares LXXXII—13 Vol. Beports. [Tyler,
provided by proves the “shall estate be law, insolvent, purchase taken for estate,” except debts be thereof, Rev. art. money improvements. taxes and for thereon, opinion of of the court in the fore majority 2007. As construed provision prop this of law going cases, removing has the effect apart to the wife from the erty surviving assets estate and of from the decedent, permanently protecting claims if the creditors. Of both husband and wife course, die, could not be “set but family, apart,” would be assets the hands the administrator debts. Givens v. Hudson,
Hpon
the death of F. H.
his wife and
inherited or
equal
land
composing
portions,
took the title to the
(ex
the title to
whole
upon
the decease of Mrs. Cook
part already
Annie G.
cept
appellant,
that
vested
sold)
from
sale
from the time
Lacy.
exemption
As the
forced
continued
it was thereafter not liable
was set
and as
mother,
it follows that she in
of the deceased
as we have
father,
seen,
debts
from the
the cred
property absolutely
and free
claims of
herited
Hoffman v.
Hoffman,
or the
We but between appellants, to be that ought affirmed; in their favor ment Annie G. Anderson and Mrs. Diana should be reversed and here in his favor appellee, appellee that shall take nothing so appellants, favor rendered ydth dismissed their costs appellants suit, but by the adjudged pay due shall appellee administrator, etc., *5 District Court costs of the this all of administration course appeal.
Reversed and rendered. Adopted November concur in the I donot Justice. Chief
STAYTON, opinion Zwernemann v. given dissenting reasons case, Von