Randolph v. White

MAXEY, District Judge (after stating the facts). After a careful examination of the decisions of the Supreme Court of this state, the court has reached the following conclusions, based upon the proof as embodied in the stipulation of counsel: 1. Upon the death of Sam White, Sr., there being three unmarried daughters at that time living with him as a part of the family, the homestead, then occupied by the father and three unmarried daughters, descended to and vested in such daughters and other surviving children of the deceased father. Rev. St. Tex. 1895, art. 2046; Childers v. Henderson, 76 Tex. 664, 13 S. W. 481; Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485. See, also, Roots v. Robertson, 93 Tex. 365, 55 S. W. 308. [877] 2. Under the facts of this case the children of the deceased father inherited the property mentioned free from the ancestor’s debts. See authorities above. 3. The homestead being exempt from forced sale to satisfy the ancestor’s debts, there was no necessity for administration to render the exemption effectual. Childers v. Henderson, 76 Tex. 664, 13 S. W. 481. 4. Article 2046 of the Texas Revised Statutes of 1895, which authorizes the probate court to set aside property exempt from forced sale, etc., to the widow, minor children, and unmarried daughters remaining with the family of the deceased, is not repugnant to article 16, § 52, of the Constitution of the state, which is in the following words: “On tbe 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 life time of the surviving husband or wife, or so long as the survivor 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 the jurisdiction, to use and occupy the same.” The fact that the statute goes a step further than the Constitution in directing the probate court to set aside the exempt property to unmarried daughters, who are not named in article 16, § 52, of the Constitution, does not render the statute obnoxious to the objection that it is repugnant to that instrument. In deciding the case of Childers v. Henderson, supra, the Supreme Court of Texas necessarily held the statute to be constitutional, and that ruling is binding upon this court. See, also., Zwernemann v. Von Rosenberg, supra. It may be stated in this connection that there is nothing inconsistent with this view in the later case of Roots v. Robertson, supra. Indeed, in that case—93 Tex., at pages 372, 373, 55 S. W., at page 310—it is expressly held that “the constituents of a family who are entitled to the homestead and other exempted property upon the death of the head are named in the.law and the Constitution.” The answer, therefore, to the question propounded by counsel in the agreed statement of facts is, and must be, under the decisions of the Supreme Court of Texas, that upon the death of Sam White, Sr., the homestead property in question descended to his children free from the claim of the complainant as a creditor of the deceased. A decree will accordingly be entered dismissing the bill for want of equity, at the cost of the complainant.