104 Tex. 558 | Tex. | 1911
Lead Opinion
-delivered the opinion of the court.
In December, 1875, and for many years prior thereto, Terrell Martin and Seely Martin, negroes, were husband and wife and owned and resided upon a lot in the city of Dallas. W. H. Gaston owned the lot in suit and he and Terrell and Seely Martin agreed to make an exchange of the lots. Terrell Martin and his wife executed and delivered to Gaston a deed for their lot, which Gaston received and took possession of that lot but made no deed to Terrell and Seely Martin for the lot he had given in exchange; however, he delivered possession of it to them and they settled upon and built a house on it, which they occupied to their deaths. Terrell Martin died in April, 1886, leaving surviving him Seely, his wife, but no child. Charles Rogers and Deck Martin were minors and grandchildren of Terrell Martin and his wife and had lived with them before the grandfather’s death and continued to live with the grandmother until her death, being cared for and supported by their grandparents.
In the year 1887 Gaston made a deed for the lot to Seely Martin, reciting a cash consideration, but in fact the consideration was the lot conveyed to him by the Martins in 1875.
Seely Martin and her grandchildren continued to reside upon- the lot until she died in 1891. There was an administration upon the estate of Seely Martin and the Probate Court ordered the sale of the lot in controversy to pay a debt against Seely Martin. It was sold and the sale was approved, deed made and Ross claims under
Defendant Boss requested the court to instruct the jury to return a verdict for the defendant, which Avas refused.
The facts show that the lot was acquired during the marriage, therefore is presumed to have been the community property of Terrell and Seely Martin, and, as they had no children living at Terrell’s death, the title then vested in Seely, the surviving wife, for the whole of the lot. This article of the Bevised Statutes was then in force:
"Art. 1653. Upon the dissolution of the marriage relation by death, all the common property belonging to the community estate of the husband and wife shall go to the survivor if the deceased have no child or children; but if the deceased have a child or children, his survivor shall be entitled to one-half of said property and the other half shall pass to the child or children of the deceased.”
The grandchildren were not children within the meaning of that article. Burgess v. Hargrove, 64 Texas, 110.
When Seely Martin died she left no child, minor or adult, surviving her. Her two minor grandchildren lived with her and were members of her family.
Article 2046, Bevised Statutes, reads: “At the first term of the court after an inventory, appraisement and list of claims have been returned, it shall be the duty of the court, by an order entered upon the minutes, to set apart for the use and benefit of the widow and minor children and unmarried daughters remaining with the family of the deceased, all such property of the estate as may be exempt from execution or forced sale by the Constitution and laws of the State, with the exception of any exemption of one year’s supply of provisions.”
The question of law which is presented by the facts is, were the grandchildren of Seely Martin her "minor children” vrithin the 'terms of the article of the statutes above copied? In article 1653, copied aboAre, the words “child or children” were used and our Supreme Court held that grandchildren were not within the terms of that statute.
Section 52, article 16, of the Constitution of Texas, deals with the subject of homestead of decedent thus:
“On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or Avife, or so long as the surviver may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having jurisdiction, to use and occupy the same.”
“Minor children of the deceased,” as therein used, do not include grandchildren, for the terms used indicate clearly otherwise by the fact that it is dealing with the rights of children as heirs. The
It is true that.the words “child” or “children” have been frequently held to include grandchildren, but those cases rest upon peculiar facts which interpret the words according to the intention of the person using them.
In Clark v. Goins, 23 S. W., 703, the Court of Civil Appeals of the. Fifth District, speaking by Mr. Justice Finley, held that a minor granddaughter, living with her grandmother, was entitled to the homestead after the death of the grandmother as against creditors, because the grandchild was a constituent of the family. In the present case the Court of Civil Appeals hold that the grandchildren being “constituents of the family” were entitled to the' homestead in preference to creditors. If this be true, then the statute would give the homestead- to a different class of persons than that prescribed by the Constitution.-
Children living with the parents are constituents of a family, but constituents of a family are not necessarily -children or grandchildren of the claimant of the exemption. Wolfe v. Buckley, 52 Texas, 648; Boots v. Robertson, 93 Texas, 365.
The statute before quoted fixes the rights of creditors of a decedent and postpones their debts only in favor of the husband or widow, the minor child or children and the unmarried daughter. These constituents of the family alone have a right under the statute to the exemption as against creditors.
In Roots v. Robertson, supra, this court said: “There is no provision of the law that authorizes a court to set apart exempt property of an estate to the surviving constituents of every family to which it may have been exempted. The constituents of a family who are entitled to the homestead and other exempted property, upon the death of the head, ar named in the law and the Constitution. The mother of the deceased is not named and Mrs. Putman had no homestead right- in the property.” The grandchildren of Seely Martin were constituents of her family and would have constituted a family to secure exemption to her while living, but they are not named in the statute which, after her death, would shield the property from her creditors.
Seely Martin being indebted at her death, the Probate Court had jurisdiction of her estate and that court having granted administration upon the estate and by regular proceeding caused the property in controversy to be sold for the payment of a debt established, the sale was valid and passed the title to the purchaser under whom plaintiff in error claims title. Deck Martin had no title to the lot and the court should have instructed the jury to return a verdict for
It appearing from the evidence that defendant in error can not show title to the land, it is ordered that judgment he rendered in this court for plaintiff in error and that he go hence without day and recover from Deck Martin all costs.
Filed November 15, 1911.
Rehearing
ON MOTION FOR REHEARING.
For the facts of this case we looked to the opinion of the chief justice of the Court of Civil Appeals and found this statement:
“Deck Martin and Charley Eogers are the grandchildren of Terrell and Seely Martin, deceased, and are their only surviving heirs. Eogers lost in the court below and did not appeal.”
I do not find in the petition for writ of error nor in the defendant in error’s reply any challenge of the facts stated in the opinion of the chief justice. The natural conclusion was that Sim died before his father, otherwise Deck could not be an heir to the grandfather.
Upon examining the statement of facts we find evidence from which a jury might find that Sim Martin was living when Terrell, his father, died. If that be true, Seely Martin was the owner of half of the land and Deck Martin the other half, therefore the sale of the land under an order of the Probate Court made in the administration of Seely Martin’s estate vested in' the purchaser only the right and interest of Seely Martin, unless the plaintiff in error or his vendor purchased in good faith without notice that the land was community property of Terrell and Seely Martin and paid a valuable consideration for it.
The judgment heretofore entered is set aside and it is ordered that the judgment of the Court of Civil Appeals be reversed and the cause remanded. It is further ordered that the plaintiff in error recover of defendant in error all costs in the Court of Civil Appeals and this court.
Reversed and remanded.
Filed December 20, 1911.
