64 Tex. 498 | Tex. | 1885
The three assignments of error relied on .by appellants relate to the same subject-matter. They complain that
This was the principle upon which the court acted in this case. Boyd had in possession the community property of the first marriage. Out of it he paid the separate debts of the husband. When he comes to divide the remainder between the heirs of the husband and the heirs of the first wife, the court compels him to pay over to
It is true that Boyd, in making the payments, misapplied the funds in his hands. He paid debts over which the exemptions had priority ; but they were debts chargeable upon the same interest and estate from which the exemptions were to be taken. They could in no event have been a charge upon the community estate of the first wife. Holding, as he did, joint funds intended for the payment of separate charges against each of its owners, out of his share, in a certain order of priority, and having misapplied the funds so far as to pay debts against one joint owner which should have been postponed to others having preference over them, the share of the other owner cannot be made to bear any portion of the loss caused by the misapplication. The share of the latter must remain intact, and the party whose interest has been misappropriated will have his recourse against the trustee for the loss thereby sustained by him.
This is the effect of the judgment below, and we see no error in it of which the appellants can complain, and it is affirmed.
Affirmed.
[Opinion delivered October 16, 1885.]