Yarboro v. Brewster

38 Tex. 397 | Tex. | 1873

Walker, J.

The appellees claim the property in controversy as a homestead.

The appellant’s claim under an administrator’s deed, made by virtue of an order of the Probate Court of Fannin county. The law of homestead, although much discussed, is very difficult of administration in this State, as every case must be more or less affected by its own peculiar facts.

The appellants claim as the heirs of James Grimes, deceased, who in 1859 occupied the premises now in controversy, with the appellees, then his minor children.

In 1859 or 1860 he left the place, and, as well as we can ascertain from the evidence, removed to a place which he had purchased in connection with a married son.

This place was deeded to his son, and we will not be allowed to presume that he ever intended to make it his homestead ; indeed, the testimony of the witnesses leaves it in some doubt whether he ever lived upon this place or not.

Grimes afterwards settled on lands lying within the railroad reservation, and probably had some intention at one time of fixing his homestead upon these lands, but had not parted with his title to the land now in controversy, and was certainly at liberty to return and take up his home there at any time he saw proper.

It appears that before going in the army in 1864, where he seems to have died, he did express his intention of returning to the home here in controversy, which went by the name of Honey Grove The plaintiffs were minors at the date of their father’s death, and he left them no other home than the Honey Grove place.

The fact that this was his homestead at the time of his death is found by the jury, and we need not discuss the evidence on which the verdict is found, further than to say we deem it entirely sufficient to support the verdict. That the plaintiffs below are the legal heirs of James Grimes, and that they were minors at the time of his .death, are facts not controverted.

It is perhaps proper to notice that James Grimes had a wife, who may have been living at the time of his death, upon whom his homestead might have descended, if she had been living with him, and had on his death become the head of the family; but it appears from the evidence that she had abandoned him and his minor children, under circumstances which probably render it unnecessary to discuss any supposed right of homestead in her to the property in question. She is not a party to this suit, and may never claim any interest in the property of the husband she had abandoned.

Looking alone at the record before us, we can have no doubt that the jury found correctly, and that the property descended as a homestead to the minor children of James Grimes.

But it is contended that the sale by the administrator, under the order of the probate court, is conclusive against the appellees, and that this proceeding cannot be collaterally impeached. There can be no doubt that the probate court has jurisdiction to determine what is the homestead left by a deceased person to his or her family. But there can be just as little doubt that neither the probate court nor any other court in the State of Texas has jurisdiction to order the sale of a homestead, to pay debts, where there is a family left who have the right to occupy it; and it is totally unnecessary to quote the authorities so often referred to by this court to support this doctrine. In this case there should have been no difficulty, there was no other real estate left by James Grimes at his death. An inventory was returned by the administrator which must have shown this fact. The rights of the minor heirs were totally disregarded, they were parties to no proceeding against them. Ho allowance was made in lieu of homestead, and their rights cannot be cut off by such an illegal proceeding. Ho equities attach to purchasers against them, for the probate court had no jurisdiction to order the sale. The judgment of the District Court is therefore affirmed.

Affirmed.