Opinion
No. 3769.
January 23, 1930. Rehearing Denied January 30, 1930.
Appeal from District Court, Delta County; Newman Phillips, Judge.
Action by the First National Bank of Cooper against L. T. Stanley and another, in which May Stanley and others were substituted for L. T. Stanley as parties defendant on his death. From a judgment against the substituted defendants, they appeal. Affirmed.
On June 11, 1926, the bank instituted the suit in Delta county against L. T. Stanley, alleged to be a resident of Stutsman county, N. D., and T. P. Eddins, alleged to be a resident of Red River county, Tex. The suit was upon a promissory note in the sum of $1,127.65, bearing interest from maturity and providing for attorney's fees and made payable to the bank at Cooper, Tex. The note was signed by L. T. Stanley and indorsed in blank by T. P. Eddins. On the same date of filing the suit an attachment was sued out by the bank and levied upon the one-twelfth undivided interest of L. T. Stanley in 325 acres of land situated in Delta county, Tex. Service of citation was returnable at the October term of the court, 1926. It appears that T. P. Eddins was duly served with citation, but L. T. Stanley died in the state of Indiana on October 12, 1926, and without service of citation had upon him. At the following term of the court, and on March 3, 1927, the bank by leave of the court filed its first amended original petition, suggesting the death of L. T. Stanley and making "his heirs, May Stanley his wife, J. B. Stanley, Weldon Stanley and Eula Mae Stanley, his children," parties defendant to the suit. It appears that the above-named children were the minor children of L. T. Stanley and his wife, Mrs. May Stanley. On August 31, 1927, the bank filed its second amended original petition, making as an additional party defendant to the suit L. W. Stanley, administrator of the estate of L. T. Stanley, deceased. It appears that on August 22, 1927, the probate court of Delta county duly and after proper notice appointed L. W. Stanley, upon his application, administrator of the estate of L. T. Stanley. Appraisers of the estate were appointed. L. W. Stanley took the oath as administrator and filed his bond and also an inventory and appraisement of the estate. It further appears that on December 3, 1927, the probate court of Delta county, by an order of record, duly appointed Mrs. May Stanley, upon her application, guardian of the estate of the minor children, and she duly and timely qualified as such. Thereafter the defendants L. W. Stanley as administrator, and Mrs. May Stanley individually and as guardian of the minor children mentioned above, appeared in the suit and filed pleas and answers thereto. T. P. Eddins was adjudged a bankrupt, and he was dismissed from the case.
The defendants first filed a plea to the jurisdiction of the court, then a motion to quash the writ of attachment and a special plea of estoppel and a plea of res adjudicata, and subject to those pleas filed a general denial and specially pleaded that the land involved in the attachment had been set aside to the minor children as homestead and that the same was not subject to the debts of the estate or liable to the attachment lien, and that the estate of L. T. Stanley, deceased, was insolvent. The court overruled the pleas, and, a jury being waived, at the conclusion of the trial rendered judgment for the bank establishing the debt sued for as a claim against the estate of L. T. Stanley and foreclosing the attachment lien, and referred the Judgment to the probate court to be attended to and complied with. The defendants have appealed. The complaint made on appeal pertains only to the levy and foreclosure of the attachment lien on the land.
In December, 1927, upon the application of the guardian, the probate court entered the following order in the guardianship proceedings: "On this the 3rd day of December, A.D. 1927, came on to be heard the application of Mrs. May Stanley to have set aside to the use and occupancy of said minors J. B. Stanley, Weldon Stanley and Eula Mae Stanley the homestead to which they are entitled under the laws of this state, for the use, support and occupancy of said minors; and it appearing to the court that said minors are entitled under the laws to have set aside to them as aforesaid the 53 acres of land mentioned and described in the inventory filed herein, to-wit, a one-sixth interest in 325 acres of land in Delta County, Texas, said land being the homestead of L. T. Stanley and family and the separate property of L. T. Stanley, deceased, and being the land on which the said L. T. Stanley and family resided. It is therefore ordered, adjudged and decreed by the court that said land above described be set aside as the homestead of said minors for the use and occupancy and as the home of the said minors, and that said property and the proceeds thereof be turned over to the said Mrs. May Stanley, guardian of said minors, by L. W. Stanley, administrator of the estate of L. T. Stanley, for the use, occupancy, support and homestead to which said minors are entitled under the laws of this state." The estate of L. T. Stanley was shown to be insolvent at the time of his death.
It was proven that L. T. Stanley and May Stanley were married on May 3, 1903, and were divorced in 1920. In the decree of divorce the custody and care of their children was awarded to Mrs. May Stanley, the wife. Mr. and Mrs. Stanley from the time of their marriage to the time of the divorce lived on what is known as "the Stanley farm." The Stanley farm consisted of 325 acres of land in Delta county and was the community property of J. W. Stanley and his wife, E. J. Stanley, who lived upon it as their homestead. They were the father and mother of L. T. Stanley. It appears that J. W. Stanley, the father, died intestate "many years" before the suit, leaving surviving him his wife, Mrs. E. J. Stanley, and their six children. The occupancy of the land by L. T. Stanley was shown to be as follows: Mrs. May Stanley testified: "After we married we lived on the Stanley farm — the place in controversy. We never had any other home, and the children have no other home. * * * It is a fact that while we lived on the farm instead of paying rent we all lived on the proceeds of the farm. We bought Mrs. E. J. Stanley what she needed. We did not pay any rent at all." There had not been any partition of the land, and the 325 acres was undivided between the heirs of J. W. Stanley and Mrs. E. J. Stanley. Mrs. E. J. Stanley continued to live on the land from the time of the death of her husband until her death in 1926. She left a will devising her half interest in all the land to her six children, share and share alike.
After her divorce in 1920, Mrs. May Stanley went first to North Dakota, taking her children with her, where she lived for a year, and then she went to Chicago, Ill. While in Chicago Mrs. Stanley married a second time, and a short time thereafter was divorced from her husband. She continued to live in Chicago, her children being with her, up to the time of the trial of the present case. She testified: "The children made their home with me at all times." She testified further, "Mr. L. T. Stanley never had a home in Texas other than the farm at Enloe (the Stanley farm) that I know of."
After the divorce decree in 1920, L. T. Stanley married again in 1921. He and his second wife lived on the Stanley farm as their home until they were divorced in 1922. After his second divorce, L. T. Stanley went to North Dakota, where he lived "for a while"; and from there he went to Indiana, and "he was making his home in Indiana at the time of his death." He never acquired a homestead in either North Dakota or Indiana. There is proof that L. T. Stanley at the time he left the farm in 1922 "left his teams, tools and household goods on the place," with the intention of coming back to the farm. It was proven, however, that he never afterwards returned to the farm to live, and never made another crop thereon. The mules were taken over by Mr. Thad Eddins. It was further proven that: "L. T. Stanley never did put any lumber or material on the place to improve it. * * * He was never down there between the death of my mother and his death. He has never been back there (on the farm) since he left in 1923."
S.W. Pratt, of Cooper, and G. W. Dunaway, of Midland, for appellants.
McKinney Berry, B. D. Clower, and J. G. Turner, all of Cooper, for appellee.
Appellant's first and second propositions present, in effect, for determination, the priority of claim to the land between the bank and the administrator and guardian. The appellant contends that there was error in the judgment of the district court in foreclosing the attachment lien claimed by the bank, because (1) the minor children of L. T. Stanley, deceased, were legally entitled to take the land in suit as homestead or as property free from all claims of creditors, including the attachment lien, and (2) the order of the probate court setting aside the land to the minor children to use and occupy as a homestead was conclusive and must stand until set aside, and may not be attacked collaterally. If the property were the homestead of L. T. Stanley at the time of the levy of the attachment, then, under the Constitution and the laws of this state, the attachment lien upon the land was absolutely void and could not be made valid. Section 50, art. 16, Const.; article 3832, R.S. And it is the established rule in this state that, in virtue of the constitution and laws of this state, the homestead on the death of the owner descends and vests absolutely in the heirs if a constituent member of the family survives, and is not assets subject to the payment of the simple debts of the decedent. Section 52, art. 16, Const.; article 3499 R.S.; Cameron v. Morris, 83 Tex. 14, 18 S.W. 422; Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S.W. 485; Childers v. Henderson, 76 Tex. 664, 13 S.W. 481; Lacy v. Lockett, 82 Tex. 190, 17 S.W. 916; Roots v. Robertson, 93 Tex. 365, 55 S.W. 308, and other cases. But in this case the attachment lien could not be held to be ineffectual on the ground that the land was homestead at the time of the creation of the attachment lien, nor could the children claim that it descended and vested absolutely in them; for in the circumstances the trial court was authorized to find as a fact, as warranted by the evidence, and it will be presumed that he did so, that L. T. Stanley had abandoned the use of the land as a homestead, and had abandoned it prior to the levy of the attachment. And, although the land was not the homestead of L. T. Stanley at his death, yet, in view of the present statutes, the children through the guardian could not legally predicate the right to a claim of preference to the property free of the attachment lien, because it was conclusively shown that the attachment lien was created during the lifetime and existing at the death of L. T. Stanley. Article 3492, appearing in the Revision of Civil Statutes in 1925, reads: "No property upon which there is a valid subsisting lien or encumbrance, shall be set apart to the widow or children as exempt property, or appropriated to make up allowances made in lieu of exempt property, or for the support of the widow or children, until the debts secured by such liens are first discharged. This article applies to all estates whether solvent or insolvent." The above article is a revision and alters the language of the article enacted in 1917, c. 34, p. 60, and carried as article 3420, Vernon's Ann.Civ.St. Supp. 1918. This act of 1917, c. 34, p. 60, was an amendment of article 3420 of the Revised Civil Statutes of 1911, enlarging its terms. It was under the statutes of 1911, prior to amendments, that the case of Krueger v. Wolf, 12 Tex. Civ. App. 167, 33 S.W. 663, cited and relied upon by appellant, was decided, and the case would not rule the present appeal. The present article, as an amendment by revision, would constitute new legislation. Briggs v. Buckner (Tex.Civ.App.) 19 S.W.2d 190. As will be observed, the language of the present article 3492 plainly extends the prohibition against setting apart property to the widow or children to property generally "upon which there is a valid subsisting lien or encumbrance." Such general language would include not only contractual liens, but involuntary liens such as attachment liens. It can be fairly implied as the intention of the Legislature that precedence was not to be given allowances to the wife or children over any subsisting lien or encumbrance upon the land. Article 3494 is not repugnant to or inconsistent with the above article, because article 3494 stands apart from the "lien or encumbrance" upon the land and relates to "debts of the estate" other than those secured by liens.
The second point cannot be sustained, as the jurisdiction of the district court was not terminated by the death of L. T. Stanley and it was empowered to proceed to judgment, as was done. Farmers' Merchants' Nat. Bank v. Jones (Tex.Civ.App.) 254 S.W. 251. The question of whether or not the land constituted the homestead at the time of the attachment and the death of Mr. Stanley was involved in the controversy in the district court, and the probate court had no authority to determine that legal question. The mere setting aside of the land as homestead by the probate court was not conclusive either that it was a homestead or that it was exempt from the attachment lien as an allowance in lieu of homestead. Green v. Cass County State Bank (Tex.Civ.App.) 7 S.W.2d 620.
By the third proposition the appellant urges that there was no evidence to show abandonment of the homestead. It is believed the circumstances warranted the trial court in finding as a fact, as must be presumed he did, that L. T. Stanley had abandoned the use of the land as homestead. He moved from the land after divorce in 1922, and went into another state and continuously resided there until his death. His children were awarded to the custody of the mother, and resided with her in Chicago. There were no acts indicating an intention to further use the property as homestead. The mules left on the place were sold to Mr. Eddins, and there was no further farming or use and no improvement of any kind made on the land. This court could not say as a matter of pure law that there was no intention to abandon the land as homestead.
The judgment is affirmed.