Ross v. Smith

44 Tex. 398

• Court: Texas Supreme Court
• Decided: July 1, 1876
• Status: Published

Opinion

Roberts, Chief Justice.

The object of this appeal is to show that the court below erred in refusing to turn over to Wesley Ross, guardian of the minors, the two mules that had been decreed by the District Court to be sold to satisfy a judgment rendered in favor of Sarah 0. Smith, together with the rest of the property of the estate of John W. Eoss, in lieu of a homestead and other exempt property. It is not shown what the two mules were worth, further than may be inferred from the price agreed to be paid for them by the deceased, John W. Eoss, to Sarah C. Smith, which was two hundred dollars, secured by note and mortgage on said mules, that constituted the foundation of the judgment and decree against the administrator, T. L. Eoss. The whole estate, including the two mules, was shown to be something less than fifteen hundred dollars, from which it appears that the amount turned over for such purpose, to which there was no objection, was something less than thirteen hundred dollars in property. And because the two mules, as well as the rest of the property, were not turned over for such purpose, the administrator and guardian appealed from the judgment of the District Court turning over the rest and not the two mules.

It is not shown whether John W. Ross resided in a town or in the country. There are no other facts in the record which show upon what the judge acted in this adjudication. And therefore there is nothing from which this court can determine that an amount of property, something less than thirteen hundred dollars, without the said two mules, was not sufficient as an amount to be. set apart to the two minors in lieu of a homestead and exempted property. Had there been but little or no property besides the two mules to be set apart for such purpose, then the question would have arisen, whether or not the judgment and decree in favor of Sarah C. Smith, not being appealed from or otherwise contested directly, should yield to the rights of the minors. The circumstances of this case as exhibited in the record do not require that question to be considered, as we cannot say that the amount which was set apart could not be adequate for such purpose.

Judgment affirmed.

Affirmed.