Tucker v. Brackett
Tucker v. Brackett
Opinion of the Court
—The appellee having filed ah inventory and appraisement of the community property of herself and deceased husband in the county court, she thereby rendered herself liable to be sued upon the community debts, for which it was made expressly liable. (O. & W. Dig., Art. 810; Paschal’s Dig., Art. 4646.) And, without any administration or further action in the county court, she had the right to manage, control, and dispose of said community property, real and personal, in such manner as may have seemed best for the estate, and of suing and being sued with regard to the same, in the same manner as
We believe the judgment of the 9th day of October, 1858, rendered in favor of the appellant against the appellee, as the survivor of O. B. Brackett, deceased, was properly rendered, to be collected of the community property. It was the only remedy he then had.
But upon the contingencies named in O. & W. Dig., Arts. 813, 814, (Paschal’s Dig., Arts. 4649, 4650,) the county court had authority to grant administration on the estate of O. B. Brackett, deceased, as in other cases provided by statute; and we are of opinion that the moment administration on the estate was opened, then the appellee ceased to repre
There appears to be no controversy about the payment of the $420, as stated in the petition; no new evidence was introduced upon that point, and it, as a ground for the injunction, was settled in a former decision* of this court in this cause, and does not appear now to be insisted upon. (Tucker v. Brackett, 25 Tex. Supp., 119.)
The injunction was perpetuated upon grounds that did not exist at the time it was granted, and for that reason we believe it in accordance with the equitable powers of the court to decree the costs against the appellee, to be paid in due course of administration, which error can be obviated by reforming the judgment here.
Whether the appellant acquired an execution hen upon the lands embraced in the levy, which should have been recognized and established in the judgment to be enforced in the county court in due course of administration, we do not feel ourselves called upon to decide. The appellant has not in his pleadings asked for any such relief, nor does it even appear that the matter was brought to the attention of the court below, whose action alone we deem ourselves called upon to revise, and not to pass upon points upon which he has not acted, either directly or by implication.
Reversed and Reformed .
Reference
- Full Case Name
- Philip C. Tucker, Adm'r v. Emily W. Brackett
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- 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.) 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.) 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. 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. 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. Judgment on a community liability was recovered against a surviving wife before she became administratrix of her deceased husband’s estate, and she obtained a temporary injunction against execution of it upon her allegation of a payment made upon the debt. Pending the injunction suit, she was appointed administratrix of her husband’s estate, which fact, and the insolvency of the estate, she represented to the court below, praying for general relief, and that if any decree be rendered against her,' it be in her character as administratrix, and to be satisfied in course of her administration: Held, that, irrespective of the payment claimed in the original petition for the injunction, which claim was not allowed, it was proper for the court below to perpetuate the injunction against enforcement of the judgment by execution and sale, and to direct that it be paid by the plaintiff in due course of her administration. Where an injunction has been perpetuated on grounds that did not exist at the time % was originally granted, the plaintiff should be taxed with such of the costs as are equitable. But error of this character may be remedied in this court by reforming the judgment, without remanding the cause. This court will not pass upon points upon which the court below has not acted, directly or indirectly.