Mary B. Trousdale v. J. Trousdale's Executors, 35 Tex. 756

Ogden, J. The will of John Trousdale bequeathed to his wife, Mary B. Trousdale, the appellant in this cause, the homestead place, with the household and kitchen furniture, a wagon and horses, twenty head of cattle, sheep and hogs, and four hundred dollars in cash; by which it clearly appears that the testator intended to provide, himself, during his life, for the immediate wants of his widow after his death. And this provision was clearly intended to be in lieu of an appropriation by the court, of a year’s maintenance.

The court did not, therefore, err in overruling the appellant’s application for such an allowance. But we think there is error in the judgment of the district court, which will require a reversal of the same.

The order of the judge in chambers, made on the tenth day of June, 1871, directed that the land in question should be sold on the first Tuesday in August, 1871; and it appears that the sale was made on that day, but the copy of the advertisement which accompanies the record, and which is sworn to by the editor, requires that the sale should have been made on the first Tuesday in July ; and the appellant claims that, by reason of the change of the time of sale, and the failure to advertise as the law requires, she was deprived of the privilege of being present at the sale, and of bidding for the land, and that therefore the sale should be set aside.

If such are the facts of the case, then most certainly the sale should have been set aside, and another ordered. Counsel for the appellees admit that the record fails to show that the sale of the land was legally advertised to take place when it did.

But they claim in their brief that the advertisement for the sale of the land on the first of August was in fact legally made; that there were two advertisements published for the sale, one fixing the time in July, and the other in August; that the first was not made in time to authorize the sale in July, and that in consequence the executors procured another order, directing the sale to be made in August; and that the sale was legally advertised to take place when it was in fact made, but that through a mistake of the editor who published the same, the wrong advertisement was sworn to and returned into court.

These facts show most conclusively that the judgment of the district court, in confirming the sale, was made and entered without sufficient evidence of the legality of the sale, to support the same, and was therefore erroneous. We are, however, asked to correct the error by granting an order in the form of a certiorari, directing the clerk of the district court to receive and file the correct advertisement and affidavit, and then to send up to this court a copy of the same, as a part of the record in this cause. Such an order would be in direct violation of the law and the uniform practice of this court.

It would be a direct usurpation of the original jurisdiction of the district court. This court has a revisory power only, to determine from the record whether or not the judgment of the district court is in accordance with the law and the facts of the case, as it was presented to that court. With this rule before us, we are constrained to decide that the district court had not sufficient evidence before it, that the sale of the land in question had been legally advertised to take place on the first Tuesday in August, to authorize a judgment of confirmation.

But appellees claim that under the will they had authority to sell the land without applying for an order for that purpose; but we do not feel called upon to decide that question, since they did invoke the authority of the court; and our decision is, that the powers of the court were wrongly or erroneously exercised. The judgment is therefore reversed and the cause remanded. ¡Reversed and demanded.