I regret that I am compelled to dissent in this case from the conclusions of my Brothers.
The question raised by this appeal for our determination may be stated thus: Is the American Bonding Company surety on the bond of W. J. Logan, guardian of the estate of his daughter, Jessie Logan, in a suit by her on the bond for her father's defalcation while acting as such guardian, entitled to offset its liability on the bond by the amount inherited by her as an heir of her father's estate? The amount for which her father failed to account while acting as guardian, and for which the bondsmen are liable, was $1,000 and interest, aggregating at the time of trial $1,808. The amount inherited by Jessie Logan from her father's estate was $2,100. In the opinion of the majority it is said:
"We are of the opinion the court did not err in holding, under the facts of this case, that the defendant, was not entitled to offset its liability on the guardian's bond with any portion of the amount received by the plaintiff from her father's estate. It is true W. J. Logan was primarily liable on the bond executed by him as the guardian of plaintiff, and that upon his death his estate became so liable, but, his estate being insolvent, his surviving widow and children, constituents of the family, took an absolute title to the homestead in question free of the claims of creditors of the estate. This exemption under the statutes and decisions of this state `was a continuing and permanent one, and adhered to the land not merely to the homestead right in the land.' "
Again:
"The property in question being homestead, the right of those who are authorized to claim its exemption does not depend upon the action of the probate court. The plaintiff, Jessie Logan, was an unmarried daughter of W. J. Logan, a constituent of his family residing on the property involved in this suit as her home at the time of his death, and she continued to reside thereon with her stepmother and other members of the family until the place was sold in December, 1909. Therefore the interest she inherited in this property did not descend charged with the payment of her father's debts, nor do we think the proceeds arising from the voluntary sale, made in December, 1909, of her interest therein is chargeable therewith."
I do not concur in these conclusions. By statute the homestead is exempted to the family, and does not as such descend to the constituent members of the family. Jessie Logan had no interest in the homestead as such as against her father. She inherited an interest therein the same as she inherited an interest in his other property, whether the estate was solvent or insolvent. Givens v. Hudson, 64 Tex. 471; Roots v. Robertson, Administrator, 93 Tex. 365, 55 S.W. 308.
In the case last cited Mr. Justice Brown, in discussing section 50, article 16 of the Constitution exempting the homestead from forced sale, speaking for the court, states the law thus:
"The exemption expressed in section 50 applies to property while the head of the family is living, but furnishes no rule for its disposition after his death. Givens v. Hudson, 64 Tex. 473; Zwernemann v. Von Rosenberg, 76 Tex. 525 [13 S.W. 485]. In the last-named case, Judge Gaines, speaking for the court, said: `In the previous Constitution of the state, the disposition of the homestead after the death of the owner was left wholly to the wisdom of the Legislature. It is so, also, in the present Constitution, except as to the manner of its descent and the use reserved to the surviving spouse and the minor children.' It has been frequently and uniformly held in this state that the homestead exemption does not descend to heirs, but they take the property, under the statute and the Constitution, exempted from the debts of the ancestor, not because it was exempted in his hands, but because they come within the class of persons named in the Constitution and the law. In the case of Givens v. Hudson, cited above, Judge Stayton said: `The thing is not exempted to the child or widow because it was exempted to the father or husband, who was the head of the family, but because the child or widow was and remained a constituent of the family.' "
In my opinion the bonding company, surety on the guardian's bond, was equitably entitled to offset its liability on the bond of W. J. Logan, guardian of the estate of Jessie Logan, with the amount she inherited as an heir of her father's estate. This court so held on the same state of facts here shown *Page 775 in the case of American Bonding Company v. Logan, 132 S.W. 897. John Logan, the appellee in that case, is a brother of Jessie Logan, appellee here. The attorneys for John Logan were the same as here appear for Jessie Logan, and it is noticeable that no application for writ of error was made from the court's holding in that case. The opinion of the majority is based on the fact that the estate of W. J. Logan owed more debts at the time of his death, May 3, 1908, than the value of the estate, and was therefore insolvent, and that it continued after his death to be insolvent and occupied by his second wife and children, including appellee, until its sale by them in December, 1909. During the year 1909, R. H. Lee was appointed and qualified as administrator of the estate of W. J. Logan, but, pending administration, no order was made setting aside the homestead to the family and withdrawing it from administration. In the statement of facts as set out in the majority opinion it is said the "estate was insolvent and was so adjudged by the probate court, and so recognized throughout the administration proceedings." This must be understood to mean that, the estate being insolvent and the homestead occupied by the family, the administrator did not attempt to sell it. It is conceded the probate court did not make any order setting aside the homestead to the family.
We have not been cited to any opinion by the Supreme Court where the precise question here raised was passed upon by that court. But the principle here contended for by the bonding company was recognized and sustained by the Supreme Court in the cases of Ashe v. Yungst, 65 Tex. 631, and Martin v. McAllister, 94 Tex. 567, 63 S.W. 624, 56 L.R.A. 585.
In the case of Ashe v. Yungst, first above cited, the facts were that Herman Yungst and his wife resided on the property in controversy; it being community and their homestead. Mrs. Yungst died in December, 1882, leaving minor children, and the property continued to be the homestead of Yungst and his wife until after the wife's death. Yungst, at the time of his wife's death, was indebted in a sum equal to the value of the property. It was assumed in the opinion that the community estate of Herman Yungst and wife was insolvent at the time of her death; that it was Indebted in a sum equal to the value of the property in controversy; that the property was their homestead; and that the appellees in the case were their minor children. The question in the case was: Did Yungst have power to convey the property in September, 1884, to pay off community debts? The court on these facts held that children have no interest in the homestead as such, as against the surviving parent by virtue of the homestead rights of such deceased parent, but they take title to such property just the same as they would to other real property, and that there is no distinction between adult and minor heirs. The sale of the homestead by the husband to pay off community debts was sustained. The opinion contains an exhaustive discussion of the rights the children inherit in an insolvent homestead of their parents, and in my opinion is decisive of the question raised on this appeal.
In the case last cited Cornelia Martin, wife of Thomas P. Martin, died in March, 1896, leaving surviving her husband, Thomas P. Martin, and six children, two of the children being at the time minors. Before and at the time of his wife's death, Thomas P. Martin owned and occupied a home in the city of Ft. Worth upon which he and the two minor children lived until shortly before the trial of the case, but at the time of trial the children had gone from the home and lived with their sisters. Mrs. Martin died intestate, and no administration was ever had on her estate, nor did the husband qualify as community survivor. Of the property which belonged to the community, there remains in the hands of the surviving husband personal property of the value of $575, and the homestead, which is worth $4,000, aggregating the sum of $4,575. At the date of Mrs. Martin's death there existed debts against the community amounting to $8,840. Thomas P. Martin applied $5,667.38 of his individual funds to the payment of community debts. Martin claimed the right to retain the community property which remained in his hands to reimburse him for his separate funds used in the payment of community debts, and the question before the Supreme Court was: Did he have the right to be reimbursed for his expenditures in the payment of the community debts out of the homestead and other property exempted from forced sale? It was contended by the children, the defendants in error in the case, that Thomas P. Martin cannot be remunerated out of the community property on hand, because it consists of the homestead and other exempt property which could not be made liable for the debts of the creditor. In the opinion of the court, delivered by Judge Brown, it was said:
"The exemption of the homestead and other property was in favor of the father, the head of the family, and did not inure to the benefit of the children upon the death of their mother. Ashe v. Yungst, 65 Tex. 631. Although the plaintiff in error could not have been compelled to yield up his homestead to pay the community debts, yet he had the authority as surviving husband to waive his exemption and sell the homestead, applying the proceeds to the payment of the community debts. Wilson v. Helms,59 Tex. 680; Fagan v. McWhirter, 71 Tex. 567 [9 S.W. 677]. If the surviving husband had the power to sell the homestead and apply the proceeds to the payment of the community debts we think that it logically follows that he also had the power to sell that property, and, out of the proceeds, to reimburse himself for the amount paid out of the separate funds." *Page 776
It follows from these remarks that, in the opinion of the writer, the proposition of appellant, under the first assignment of error, that:
"Where it appears, under an agreed statement of facts, that the plaintiff, a surviving daughter and a former ward of a deceased guardian received the sum of $2,100 from the estate of said deceased guardian and father, and said ward sues the surety of said deceased guardian and father, and obtains judgment for the sum of $1,808 against said surety, the surety is entitled to set off said $1,808 by the $2,100 received from the estate of her deceased father and guardian"
— is sound, and that the first assignment under which the proposition properly arises should be sustained.