Mabry v. Ward

Bonner, Associate Justice. This suit is an outgrowth from that of Mabry v. Harrison, 44 Tex., 286, in which will [409] be found a full statement of the case and the issues as then presented and determined. Among other matters therein litigated, was a claim for $10,000, proceeds of a policy of insurance taken out on the life of W. H. Ward, and which, since his death, had been received by his wife, the appellee, Margaret S. Ward. It was adjudged that this was her separate property and formed no part of his estate. That portion of the decree was not complained of on the former appeal, and was not passed upon by the court. (44 Tex., 295.) This issue is again presented incidentally in the present suit, but the legal effect of the former judgment is to make it res judicata, and it will not further be considered. The estate of W. TI. Ward, which, at his death, was of the value of about $50,000, has since, by depression in value, loss by fire, and otherwise, been reduced to only about $3,000. Subsequent to the affirmance of the judgment in the above case of Mabry v. Harrison, Mrs. Ward, having failed to establish her claim to the property in controversy, and W. II. Ward having died without leaving a homestead, made application to the County Court, in behalf of herself and minor children, for a substituted allowance, in lieu of a homestead and other exempt property. H. P. Mabry, as the administrator of the estate of W. II. Ward, appeared, and submitted the matter to the court. W. H. Harrison, as a creditor, intervened, excepted to the application, and protested against the allowance, setting up the proceedings and judgment in the former suit,- and that Mrs. Ward and her children had an estate amounting in value to more than $10,000. To this she filed general exceptions and denial. On the trial in the County Court the exceptions of Harrison were overruled and those of Mrs. Ward sustained; and she was adjudged the sum of $3,000 in lieu of a homestead, and $750, which was remitted to $500, in lieu of other exempt property. On appeal to the District Court the same disposition was made as to the exceptions of both parties, but she was al [410] lowed, only $2,000 in lieu of a homestead, and $500 in lieu of other exempt property. It was further ordered, that the lands belonging to the estate, including the lots upon which intervenor Harrison had his mortgage, be sold, and that the assets of the estate be marshalled and paid out by the administrator as should be ordered by the County Court, giving preference to the substituted allowances over his mortgage claim. From this judgment the intervenor appeals, and assigns as error the judgment of the court upon the exceptions and in granting the substituted allowances. By the probate act of 1848, which it is claimed should govern the rights of the parties in this case, it was made the duty of the chief justice of the County Court, at the first term after the grant of letters of administration, to set apart to the widow and minor children of the deceased an amount sufficient for their maintenance for one year. (Paschal’s Dig., art. 1304.) This article of the statute has the express proviso “that when any such widow and minor children shall have separate property adequate to their maintenance, then no such allowance shall be made as is provided for in this section.” B37' a subsequent article (1305) it is further made the duty of the chief justice, at the same term of the court, to set apart for the benefit of the widow and children all such property as may be exempted from execution or forced sale by the Constitution and laws of the State, and to make an allowance in lieu of any or all of the specific articles which may not be among the effects of the deceased. Similar provision was also made by the probate act of 1870, as construed by this court in Mayman v. Reviere, 47 Tex., 357. The evident object of these statutes was to continue to the widow and children that protection afforded by the general policy of the law exempting certain property from execution and forced sale. (Hubbard v. Horne, 24 Tex., 272.) [411] The failure of the chief justice to set apart for the benefit of the widow and children this exempt property, or to make the substituted allowance in lieu thereof, would not defeat their rights under the law. (Connell v. Chandler, 11 Tex., 249; Little v. Birdwell, 27 Tex., 688.) Particularly should it not so prejudice their rights when the delay was occasioned, as appeal’s by the record in this case, by reason of pending litigation between the widow and the administrator and creditors, to determine whether or not the property claimed as such, was the homestead. Until this was ascertained the chief justice could not act with certainty in making the order. Under article 1305 there is no restriction upon the right of the widow and children to have the specific property or the substituted allowance, the only proviso being, that if the estate is solvent the statute shall not be construed to prohibit the partition of said property among the heirs and distributees. By the preceding article (1304) there is the express proviso before referred to, that the allowance for maintenance for one year shall not be made if they have separate property adequate for their support. By a familiar rule of construction, the fact that they have separate property adequate for their maintenance would not, then, under this statute, defeat their right to an allowance in lieu of the homestead and other exempt property. By the subsequent act of 1870, (Paschal’s Dig., art. 5487,) the exempt property or its value formed no part of the estate for the purpose of administration, but was reserved for the benefit of the family. If a specific homestead had in fact been left by the decedent, under the uniform construction and practice prevailing under both the statutes of 1848 and 1870, we think there is no question bu't what the same would be set .apart for the use and benefit of the widow' and children, without regard to whether or not they had separate property; and the same reason which would require this would also require the substituted allowance. [412] That this claim is superior to liens other than the vendor’s lien, has long been decided by this court. (Robertson v. Paul, 16 Tex., 472; Giddings v. Crosby, 24 Tex., 295.) Whatever may be the seeming injustice of the law or the construction heretofore given to it in its application to creditors, we can but say that “ thus it is written.” The hardship in the present case seems the more to be regretted, as the waut of proper care and precaution to secure his debt under the ordinary vicissitudes of life cannot be attributed to the intervenor. But the misfortune to him, and which also to some extent must be shared by the widow and children, seems to have been occasioned by those unforeseen casualties which now and then occur, and which strikingly illustrate the proverb, that riches make themselves wings and fly away. To provide against such misfortune was doubtless one of the objects of the Legislature in the passage of the statutes now under consideration. The allowance made by the court seems to have been reasonable under the evidence, being, as to the homestead, the lowest estimated value of an average one in the city of Jefferson, the place of the late residence of the deceased, W. H. Ward. There being no apparent error in the judgment below, the same is affirmed. Affirmed. [Chief Justice Moore did not sit in this case.]