Putnam v. Young

Citations

• 57 Tex. 461
• 1882 Tex. LEXIS 168

Syllabus

<p>1. Parties.— See statement of casé for facts under which the heirs alone could not prosecute a suit to recover real or personal property, which would be assets in the hands of an administrator for the payment of debts.</p> <p>2. Homestead — Partition.— One owning and occupying land, on a part of which there was his rural homestead, had a wife and children; the wife died in 1864 while the land was thus occupied, leaving children of the marriage surviving; the husband married again in 1865, and died in 1870, and his second wife, who continued to occupy the homestead with the children of the first marriage, afterwards married. There was no administration on the estate of the first wife. In a suit by the heirs of the first marriage against the surviving widow of the last marriage, for the land and for partition, held—1</p> <p>(1) To the extent that the heirs sought to recover the excess of the interest of the estate of their deceased father in the land, over and above the homestead (adminhtration being pending on bis estate), and which amount would have been assets in the hands of the administrator, the suit by the heirs alone could not be maintained.</p> <p>(2) To the extent that such a suit sought to recover the interest inherited by the heirs from their mother in the community property of the first marriage, including the interest, if any, in the homestead as it existed at her death, they were the only proper parties, there having been no administration on her estate.</p> <p>(3) In such a suit, the plaintiffs were entitled to an account and partition of their mother’s interest on the death of their father.</p> <p>(4) The surviving widow was entitled, subject to such a partition and the equities, if any, growing out of it, to the enjoyment of her deceased husband’s half interest in the old homestead, existing at the date of the death of the first wife, and which was still continued at his death, or the enjoyment of a newly acquired homestead; but she was not liable