Abney v. Pope

Citations

• 52 Tex. 288
• 1879 Tex. LEXIS 139

Syllabus

<p>1. Homestead—Estates oe decedents—Trust !salb.—The owner of a homestead joined his wife in incumbering it, by trust deed, to secure the payment of a debt, and afterwards, in 1872, died, and his widow, after his death, abandoned the place and removed from the State. The claim was presented for allowance and approved by the administrator, after which the property was sold, under authority of the trust deed, by the trustee. In a suit brought by the purchaser against the children of the deceased, in possession, to recover the propertyHeld—</p> <p>1. The sale under the power, by the trustee, would be inconsistent with the statute postponing the debt which the trust deed was intended to secure, to others, including an allowance to he made to the widow and children in lieu of a homestead or other exempt property.</p> <p>2. The statute, in providing that exempt property should constitute no part of the estate, did not design to interfere with the established policy to allow no mere mortgage lien to be so enforced as to deprive the widow and children of the exempt property, or an allowance in lieu thereof.</p> <p>3. Under the statute, the Probate Court was authorized to make an allowance in lieu of a homestead and exempt property, and that allowance was to be paid in preference to claims secured by mortgage liens.</p> <p>4. If one lien creditor could appropriate the homestead because of his power to sell, the property on which other creditors have a lien might be taken to supply to the family of the deceased their allowance in lieu of a homestead.</p> <p>5. The mortgage was hut an incident to the claim, and the claim comes within the letter and policy of the law which requires its presentation and postpones its payment to preferred claims.</p> <p>6. The purchaser acquired no title.</p> <p>2. Cases APPROVED.—Robertson’s Administratrix v. Paul, 16 Tex., 472 ; Terry v. Terry, 39 Tex., 313; Hayman r. Reviere, 47 Tex., 357; McLane v. Paschal, 47 Tex., 370, approved.</p>