Tucker v. Brackett

Citations

• 28 Tex. 336

Syllabus

<p>A surviving wife, by filing in the county court an inventory of the community property of herself and her deceased husband, renders herself liable to be sued on the community debts, for which such property is expressly made liable by the statute. (Paschal’s Dig., Art. 4606, Note 1053.)</p> <p>When such inventory and appraisement are filed, the wife becomes the surviving partner and representative of the community, and while she continues to act in that capacity she may be sued for the debts of the commu.nity; but, as her capacity is a fiduciary one, and as’ such suits are more in the nature of proceedings in rem than in personam, the judgment should be that satisfaction be had out of the community estate in her hands. (Paschal’s Dig., Art. 4652.)</p> <p>Though not expressly authorized by the statute, this court is of opinion that such judgments may be ordinarily enforced by process of' execution. But if it be made to appear that by that mode of enforcement the community property is likely to be sacrificed and the estate to be rendered insolvent, ' the courts, in the exercise of their equitable jurisdiction, have ample power to afford all necessary or proper relief.</p> <p>If, upon one of the contingencies specified by the statute, (Paschal’s Dig., Arts. 4649, 4651,) administration upon the estate of the deceased husband be granted by,the county court, the wife ceases thereupon to represent his estate as survivor, and cannot be further proceeded against as such by suit or execution.</p> <p>Where the surviving wife is herself appointed administratrix of her husband’s estate, on a proper showing she may obtain a perpetual injunction against execution of a judgment previously rendered against her as surviving partner of the community, with directions that the judgment be paid by her in due course of administration.</p> <p>Judgment on a community liability was recovered against a surviving wife before she became administratrix of her deceased husband’s estate, and she