Kelly v. Nowlin

HODGES, J.

In March, of the present year the appellee, Roy Nowlin, filed this suit in the district court of Smith county in the form of an action of trespass to try title. The purpose was to recover possession of lots 4 and 5, in block 6, situated in the town of Lindale, Smith county, Tex. The appellant, his stepfather, concedes that the ap-pellee owns the title to the property in controversy, but resists the suit upon the ground that the property was the homestead of himself and his deceased wife at the time of her death and that he had the right of occupancy during the remainder of his life. The property consisted of two buildings on two lots situated on one of the business streets of Lindale; each of these buildings was two stories high. There was a stairway running between them to the second story, terminating at a platform. Here'a door opening on each side furnished the means of' ingress and egress to and from the upper stories. The lower story of one portion of the building had, some years ago, been leased to the federal government as a post office, and was being used for that purpose at the time of trial. The upper story had been fitted, up for rooms suitable for a dwelling place for a private family. The other portion of the building had been rented out for business purposes. The property originally 'belonged to the separate estate of Mr. Kelly, wife of the appellant, who died in October, 1919. Mrs. Kelly left a will in which those lots and other property not involved in this suit were bequeathed to the appellee, who was her only child. The only question presented in this appeal is, Was the property being used and occupied by Kelly and his wife as the family homestead at the time Mrs. Kelly died? The court submitted that issue to a jury, and it was answered in the negative. The appellant contends that under the evidence the court should have held, as a matter of law, that the property was, on the date referred to, the family homestead.

The facts show that Kelly married the ap-pellee’s mother, who was then a widow, in California during the month of June, 1915. Mrs. Kelly some months thereafter came to Texas and stopped with relatives near Lin-dale. A few weeks later she was joined by Kelly. In the early part of 1916 Mrs. Kelly moved her household goods into the rooms on the second floor of the building above referred to. She continued to occupy those rooms as her home until August, 1919. Kelly was engaged in the business of contracting, and was absent from home most of the time. He lived temporarily at Paris, Dallas, and McKinney during the times that his business required his presence at those places. He spent a considerable portion of his time in 'Dallas, and while there stopped at the St. George Hotel. There was some testimony tending to show that he told those with whom he discussed the matter that the St. George Hotel was his home. The evidence, however, shows that he visited his wife at intervals, and that they resided together during his visits in the rooms over the building in controversy. Those rooms were fitted up with the furniture and equipments commonly used in housekeeping. During the time Mrs. Kelly resided there the appellee, who was her only child, resided with the family. He took his meals there and slept there while in Lindale. Some time about the first of the year 1919 Kelly engaged in farming a few miles from Lindale. Most of the time he was absent from home,, superintending his farming operations. He and his employees lived in tents and other temporary quarters. He went to Lindale, according to his testimony, once every week or two, visited his wife while there, and during those visits they occupied the premises in controversy. Mrs. Kelly was afflicted with tuberculosis, and in August of 1919 she left Lindale for Sanatorium, Tex., to be treated for that complaint. The appellee testified that while going to the train she told him that she never expected to live in lindale again. It appears from other portions of the testimony that she and Kelly had discussed the matter of moving to El Paso for the benefit of her health. In October, a little more than two months from the time Mrs. Kelly left her home, she died while under treatment at Sanitorium. The testimony justifies the conclusion that during Mrs. Kelly’s absence no change was made by Kelly in the use and occupancy of their_ rooms. The question is, Were these facts sufficient to show, as a matter of law, that the property in controversy was used and occupied as a family homestead at the time Mrs. Kelly died?

[1] The building was arranged for a dwell-’ ing. It was an apartment where a family might reside with comfort. It was furnished with the equipments required for housekeeping. Here Mrs. Kelly and her son for several months ate their meals and slept, and it was here that Kelly, who had no other permanent place of abode, visited his wife at intervals while engaged in a line of business which required him at times to be absent in other parts of the state. It was the only place owned by either Kelly or his wife used by them in any manner as a home or a place of residence. These facts were sufficient to impress upon the premises the homestead character. Had an effort been made during such occupancy to mortgage the property as security for a debt, the incumbrance would have been void. Rose v. Blankenship, 18 S. W. 101; Jacobs v. Hawkings, 63 Tex. 1; O’Brien v. Woeltz, 94 Tex. 148, 58 S. W. 943, 59 S. W. 535, 86 Am. St. Rep. 829; Bayless v. Guthrie, 218 S. W. 131.

[2] Unless the evidence shows an abandonment of the premises at or prior to the death of Mrs. Kelly, the homestead character continued and the property became subject to the appellant’s claim as the surviving spouse. The only evidence of abandonment relied on is to be found in the acts and declarations of Mrs. Kelly. It is undisputed that she left the place to go to a health resort for treatment. Her household goods remained at the place of residence. It is true the appellee testified that she told him at tire time she left that she never expected to live there again. But there is nothing to show that Kelly concurred in that decision, or that his relations towards the premises were substantially altered after his wife left. As the head of the family he had the right to designate the home and to determine when it should be abandoned. Tackaberry v City Natl. Bank, 85 Tex. 488, 22 S. W. 151, 299.

We' conclude that the finding of the jury in this case was contrary to the evidence, and for that reason the judgment should be reversed. The case, however, will be remanded for such other proceedings as may be proper in the court below.

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