Parker v. Portis

Wheeler, J. The property levied on was purchased with money collected by the appellee, Mrs. Portis, as administratrix of the estate of John Cummings. It was the money of the estate with which the property was bought and paid for. It therefore was neither community property of the appellees, nor the separate property of Mrs. Portis ; but was property held by her in trust, for the distributees and heirs of the estate of John Cummings. Though the titles were taken in the name of Mrs. Portis, and whether she was rightfully administratrix or not, still the property in her hands was trust property, held in trust for those interested in or entitled to receive the estate; [170] Because purchased with their money. And consequently, it was not subject to the plaintiff’s execution. Holding the property as trustee, the appellee had the right, and it was legally incumbent on her, to assert the claim on behalf of the beneficiaries in the trust, and to maintain the exemption of the property from the execution. And where the fact was made legally to appear to the Court that the property was so held, the Court would not suffer the sale of it in satisfaction of the plaintiff’s execution. The issue made up by the parties presented, properly, the only material question arising upon the merits of the case; that is, whether the property was liable to sale upon the execution, or writ; and the Court very properly decided that it was not. The irregularity in giving the bond was amendable, (Sweeney v. Jarvis, 6 Tex. 36,) and is not now material, since the case has been decided rightly upon the merits. Whether the community property is liable for the debts of the husband, contracted before the marriage, it is not necessary in this case to decide. That question may be determined,' in another case before the Court, between those parties. If so liable, the community money mixed with the trust fund in this case, may be reached. But it can only be reached by a proceeding or a levy, to reach and dispose of that particular interest. It cannot be permitted, that a levy upon the entire trust estate, as community property, should be maintained, for the purpose of subjecting so inconsiderable a community interest ■mixed with the estate. The judgment is affirmed. Judgment affirmed.