Susan E. Putnam et al. v. J. G. Young, 57 Tex. 461

Bonner, Associate Justice. This is a companion-case to that of Pressley’s Heirs v. Robinson, decided at this term, infra, as they are similar in many of the material questions presented. The opinion in that case is here referred to, and adopted as the opinion in this, in so far as the questions are the same. As both John and Melissa M. Miller, the father and mother of plaintiffs, died prior to August 15, 1870, the rights of the parties, so far as governed by our probate laws, must be regulated by that of March 20, 1848 (Pasch, Dig., p. 300).

As there was a pending administration on the estate of John Miller at the institution of this suit and at the trial of the cause below, the plaintiffs, as his heirs, did not, so far as appears by the record, come within any exception to the general rule that the heirs could not prosecute alone a suit to recover real or personal property of his estate, which would be proper assets in the hands of the administrator for the payment of debts.

To the. extent, then, that the plaintiffs seek to recover the excess of the interest of the estate of John Miller in the land in controversy, over and above the homestead, and which would ■ have been assets in the hands of the administrator, this suit by the heirs alone, under the case as made, should not be sustained.

To the extent, however, that it sought a recovery of the interest which the plaintiffs inherited from the estate of their deceased mother in the community property of the first marriage, including this interest, if any, in a homestead as it existed at her death, they were the proper parties, and the only proper parties, as there was no administration on her estate. Under the decision in Pressley’s Heirs v. Robinson, supra, the plaintiffs were entitled to an account and partition of their mother’s interest, at furthest, on the death of their father, John Miller. His surviving widow, now the defendant Melissa M.

Young, was, however, subject to this partition and the equities, if any, growing out of it, entitled to the enjoyment of his half interest in the old homestead, if any, existing at the death of the first wife and which was still continued at his death, or to the enjoyment of a newly acquired homestead. She was not liable for use and occupation of the interest to which she was entitled in such homestead. In fact, she was not liable for the use and occupation of the whole of such homestead, if she did not hold the interest of the plaintiffs, or some of them, adversely to their right of joint possession.

If the estate of John Miller was insolvent, then under the law in force at his death, the homestead descended in fee to his widow and minor children, for their joint benefit; and neither she nor the minor children were entitled to its exclusive possession to the prejudice of the other. Horn v. Arnold, 52 Tex., 161. In this connection, the solvency of his estate became a material question, and the court erred in excluding the testimony offered on this issue. The court also erred in the charge to the jury. For these errors the iudmnent below is reversed and the cause remanded.

Beversed and remanded, [Opinion delivered December 29, 1882.]