The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-06-21
THE HIGHER COURTS.
Supreme Court.
IAUsrIN TERM 1888. !
Reported by j. ]. Lane. ]

SYNOPSIS OF OPINIONS RENDERED.
Reported by j. ]. Lane.l
parties desiring information upon matters
concerning the higher courts will receive such
by writing our court reporter.
TUESDAY.
New Question Determined: EX-
emption as affected by exchange of
homestead for other property.
Chief Justice Willie yesterday read
the opinion of the court, involving
the above important question, origi-
mated in the case of NJ. Schneider Il
Bro. VS.. Mrs. R. z. Bray, appealed
from Limestone county, and not
heretofore determined in this state.
Mrs. Bray exchanged her country
homestead for town property of less
value, receiving the differencein value
in money, and using the money to
conduct a small business in town, and
in, the course of some transactions be-
coming the debtor of Schneider 81
Bro, her newly acquired property
was attached by them for debt.
.It is we'll settled" says Justice
Willie that independent of the pro
visions of the 10Th article and sd
section of the constitution Of 1876,
the surviving wife is entitled to hold
the homestead after the death OF the
other spouse, so long as such survivor
may choose to occupy 1t. BY the
above cited section of our constitu-
ton, occupancy is expressly required
only as against the right OF the des-
cendant Of the deceased husband and
wife to have the property parEtloned
and their interests set apart to hem
8 In this case there IS no question
but that the appellee as surviving
wife was entitled to the homestead
occupied by herself and her deceased
husband at the time of his death, so
long as she choose to reside thereon /;
nor is there any controversy between
herself and the descendants OF her
husband as to her exchanging 1t for
another homestead. The controversy
is between herself and her creditors,
whose, debts accrued subsequent to
the exchange, us to her rights TO nave
the new residence -eAeln pSed is
against an attachment and execution
sued out i'll satisfaction OF such debts.
The precise question thus raised is for
the first time before this court Tor
decision"
Exchanges of exempt for other
property are voluntary or lnVolIn-
tary, concerning which, says Judge
Willie, general principles have been
concurred i'll by Il majority OF the
American courts. Several courts nave
heltl that when debtor voluntarily
exchanges property, specially eA-
empt from execution for property not
exempt, he cannot claim exemption
for the property received IN exchange.
Citing numerous authorities IN
point Judge Willie says: 1.-The reason
of this general rule is well stated in
the last case (Urguhart VS.. Smith, 2
La. 1857 and is generally adopted and
acted upon in the others. This IS i'll
effect that the law deSignateS the
species of property it exempts, and
does not allow the debtor to chose for
himself in respect to the species or
kind of property to be exempted.
To allow this would be to sub
stitute the choice of the debtor
for the provisions of the statutes.
When the exempt property is volun-
tarily sold and converted into money,
or other property, not also exempt,
the right is gone.
"The reasons thus given for the
rule" says Judge Willie, prove the
rule itself to be that if the property
received in exchange is CT the class
or character not exempt y law, it is
subject to execution. 1t also estab-
fishes the converse principle that If
the property received in exchange is
of the species exempted by law it
will not be subject to execution for
the debts of it's new owners. This is
illustrated by the case cited above Ill
which the rule has been enforced
I'm the case Of Urguhart VS.. Smith,
a soldiers bounty which was exempt,
was exchanged for horses and harness
which were not exempt. In Fred
lander VS.. MahOney (31 Iowa. policies
IF insurance exempted by the avs of
Iowa were exchanged for merchan-
disc subject to execution and so with
the rest. In all OF which cases the I'M
exempted property acquired in the
exchange was held liable to eXecu-
tion."
lis the homestead any exception
to the general rule on this subject?
And if not, why may not a surviving
wife holding one by an undOubted
right exchange it for another and
hold the latter exempt from eXecu-
ton for her debts ?" are questions
suggested and discussed by the court.
"In making the exemptions" rea-
SONS Judge Willie, 'our constitution
and statutes selected articles most
certainly contributing to the ease,
comfort and independence of the
family. Theylallow family house
and its furniture; horses and cattle to
labor for them and contribute to their
sustenance; and the tools of trade for
the head of the family
TO use in making sup
port. Should any of these
articles become useless, decayed,
or of not so mach service as would be
others Of the same species, the law
does not compel the owner to keep
them, but he may exchange them for
others of more service to him. Other
wise the benefcient effect OF the law
would be in great measure defeated.
And so with the homestead. The
houses may become untenable, and
the owner unable to repair them or
build others in their place. The land
may be barren and the owner unable
to make living for himself or family
upon it. He may find a place where
he could pursue his trade or calling
with profit, which he cannot do at his
then homestead. The law win Ger
tainly not prohibit him from exchang-
ng his home for one more comfortable.
his barren for more productive land,
OF faSten him to a place where he
must StarVe. under the penalty that if
he exchanges for the comfort and
sustenance of himself and family, he
should sacrifice his home to creditors"
And SO in the present case we find
Il woman livingsal alone at home |
stead where she is separated from |
neighbors who could comfort and |
protect her in her loneliness, and |
where she can make nothing for her |
support. and must, if she depends on |
her own eXertionS, eventually starve, |
but who has an opportunity to eX-
change this mere homestead for one |
il town, and receive, in addition, a /
small amount of money; who can |
probably make a livelihood in the |
town and will at least have society |
and protection there. Is she not to |
besallowed to make such a desirable |
We do not think the law |
any such confinement |
to any particular home, provided the |
new one was within the limit of the |
exemption, as it was in this case
Creditors have lost nothing by it, for |
there is no more property withdrawn |
from their reach than there was be-
fore the exchange was made"