Davis v. McCartney

Citations

• 64 Tex. 584

Syllabus

<p>1. Community property — Creditors — Wipe — Equitable title. — A husband died, August 16, 1876, leaving community property, including a homestead of the value of $3,500, and community debts amounting to $4,000; the wife married again, and not having qualified as survivor, sold the homestead and used the proceeds in paying the community debts. Held:</p> <p>(1) That the laws in force in 1876 recognized no right in a creditor to subject the homestead of a deceased party to the payment of his debts, if a widow or minor child survived. Constitution and act of August 9, 1876, discussed.</p> <p>(3) The creditors could fix a charge on the homestead only when the widow and minor child ceased to use it as such and the right of all the heirs to have it partitioned among them accrued.</p> <p>(3) The widow, by the sale, renounced her right of occupancy, and the heir, being a non-resident minor with no guardian in this state, the property lost its homestead character.</p> <p>(4) On the death of the husband, the surviving wife is not personally liable for the community debts, but the community property is incumbered with an equitable charge for their payment. This equitable charge becomes a legal charge if the wife qualifies as survivor or if administration is had upon the estate.</p> <p>(5) Without making the equitable charge a legal one, the wife may discharge the equitable incumbrance upon the community estate by the conveyance of an equitable title to it. Such an irregular but just disposition of the property, the proceeds being applied to the payment of community debts, would convey an equitable title superior to the legal title to the husband’s half.</p> <p>(6) Under the first and succeeding statutes the powers of the wife under them have been made to cease with her widowhood; but while single, she has all the rights and powers of a feme sole, and can bind herself personally as well as the estate. On a second marriage she ceases to be a free agent and is shorn of these rig