author: McGEE, Justice. CHADICK, Justice,

text:
    William Wesley WILLIAMS, Jr., Independent Executor, et al., Petitioners, v. Mildred Disch WILLIAMS, Respondent.
    No. B-6738.
    Supreme Court of Texas.
    May 31, 1978.
    Rehearing Denied July 19, 1978.

      Hooper, Robinson & Moeller, Karl H. Moeller and Malcolm Robinson, Austin, for petitioners.
    Charles G. Trenckmann, Austin, for respondent.
   McGEE, Justice.

The question presented by this cause is whether a premarital agreement to waive the constitutional and statutory rights of a surviving spouse to a homestead and other exempt property is valid. The trial court held such an agreement to be valid. The court of civil appeals reversed the judgment. 548 S.W.2d 492. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

William Wesley Williams, Sr., and Mildred Disch Lawrence were married on September 9, 1973. Both parties had children by previous marriages and both brought substantial property into this marriage. Four days before their marriage, the parties executed a premarital agreement. The basic agreement containing the provisions relative to the waiver of the homestead right and right to have exempt property set aside to the survivor provided:

“Whereas the parties desire that all property now owned or hereafter acquired by each of them shall, for testamentary disposition, be free from any claim of the other that may arise by reason of their contemplated marriage,

“It is therefore agreed:

“1. Property to be separately owned. After the solemnization of the marriage between the parties, each of them shall separately retain all rights in his or her own property, whether now owned or hereafter acquired, and each of them shall have the absolute and unrestricted right to dispose of such separate property, free from any claim that may be made by the other by reason of their marriage, and with the same effect as if no marriage had been consummated between them.”

A supplemental agreement was simultaneously executed and incorporated into the basic agreement. It disclosed the properties that each spouse would bring into the marriage, set forth certain guidelines concerning living and other incidental expenses to be incurred during the marriage, and further provided:

“5. All income from the separate estate of each party, including dividends, interest, rents and salaries, and any increases, sales proceeds, reinvestments or changes in said separate estate, shall remain under control of the party receiving the same and shall be deposited in such party’s separate account. It is the intent of the parties that such income, except for the personal living expenses herein-above set forth, shall remain the separate property of each party.”

The marriage lasted but 141 days. Shortly after the parties were married, Mr. Williams became ill and died on January 29, 1974. He died testate and his sole devisees were his children, William Wesley Williams, Jr. and Geneva W. Canion, who are the petitioners in this cause. Approximately one year after the death of their father, and relying on the executed premarital agreement, they requested possession of the residence, the household furnishings therein, and a 1971 Chrysler automobile. It is undisputed that the property sought had been the separate property of the deceased and had been devised to the petitioners. Mildred Williams refused to abide by the premarital agreement, choosing instead to claim her rights as a surviving spouse. Tex.Const. art. XVI, § 52; Tex.Prob.Code Ann. §§ 271, 272, 284 (1956).

As a result of Mrs. Williams’ refusal to vacate the property, the children filed this suit for declaratory judgment. The case was withdrawn from the jury and the trial court rendered judgment in favor of the children. The trial court held that the portion of the premarital agreement by which Mrs. Williams relinquished her constitutional and statutory rights to the homestead was valid and binding on her. The court then ruled that the agreement was void to the extent that it provided that income or other property acquired during marriage should be the separate property of the party who earned or whose property produced such income or acquisition. But the trial court held that the valid and void provisions of the agreement were severable and ordered that the children recover possession of the residence, all personal property belonging to their father at the time of his death, and the Chrysler automobile.

Article XVI, section. 52 of the Texas Constitution provides that the homestead shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead. This is sometimes referred to as the probate homestead. 0. Speer, Texas Family Law § 36:62, at 208 (5th ed. 1977). This homestead right of the survivor has been held to be one in the nature of a legal life estate or life estate created by operation of law. See Sparks v. Robertson, 203 S.W.2d 622 (Tex.Civ.App.— Austin 1947, writ ref’d); White v. Black-man, 168 S.W.2d 531 (Tex.Civ.App.— Texarkana 1942, writ ref’d w. o. m.); Petrus v. Cage Bros., 128 S.W.2d 537 (Tex.Civ.App.— San Antonio 1939, writ ref’d); Comment, The Widow’s Exemption in Texas, 25 Baylor L.Rev. 346, 347 (1973). The Probate Code requires that the probate homestead and certain exempt personal property be set aside to the surviving spouse. Tex. Prob.Code Ann. §§ 271, 272, 283, 284 (1956). These rights are provided by law for the protection of the family and to secure a home for the surviving spouse. Therefore, we must decide whether these rights may be waived by a premarital agreement.

The statutory authorization for premarital agreements in Texas is section 5.41 of the Family Code. This statute should be construed as broadly as possible in order to allow the parties as much flexibility to contract with respect to property or other rights incident to the marriage, provided the constitutional and statutory definitions of separate and community property or the requirements of public policy are not violated. See generally 0. Speer, Texas Family Law § 16:5, at 192 (5th ed. 1976); McKnight, Commentary to the Texas Family Code, Title 1, 5 Tex.Tech.L.Rev. 281, 374-76 (1974).

Mrs. Williams argues that the policy of the law favoring the security of the widow by preventing an improvident relinquishment of the homestead, or other similar rights, is paramount to the policy of the law favoring flexibility in premarital agreements. Decisions from Kansas and North Dakota support this view. In re Neis’ Estate, 170 Kan. 254, 225 P.2d 110 (1950); Swingle v. Swingle, 36 N.D. 611, 162 N.W. 912 (1917). The weight of authority and the better rule, however, allows the premarital waiver of these rights. See, e. g., Smith v. Tang, 100 Ariz. 196, 412 P,2d 697 (1966); In re Howe's Estate, 81 Cal.App.2d 95, 183 P.2d 329 (Dist.Ct.App.1947); In re Scwartz’s Estate, 79 Cal.App.2d 308, 179 P.2d 868 (Dist.Ct.App.1947); In re Estate of Taylor v. United States National Bank, 248 Or. 538, 436 P.2d 256 (1968); In re Estate of Moore, 210 Or. 23, 307 P.2d 483 (1957); In re Schwarzwalter’s Estate, 47 Wash.2d 119, 286 P.2d 699 (1955); Annot., 65 A.L.R.2d 727 (1959) and other cases cited therein.

Furthermore, the premarital agreement in question does not violate the public policy of this state. The parties to the agreement were mature individuals. There was no suggestion of fraud, overreaching, or a lack of understanding. Full disclosure was made of the nature and extent of the property interests involved. Both parties had substantial separate property which they desired to preserve for themselves. There were no interests of any minor children to protect. Viewing this agreement in light of these facts and circumstances, as well as the underlying purpose of the transaction, we are of the opinion that neither party would be adversely affected by the premarital agreement.

Mrs. Williams also contends that article XVI, section 52 of the Texas Constitution, in effect, prohibits the premarital agreement now before us. This contention, however, is based on an incorrect interpretation of section 52. While a “surviving” spouse is granted the right to occupy the homestead by section 52, such language is not to be construed as a constitutional prohibition to a waiver of that right by prospective spouses. Therefore, we hold that Mrs. Williams waived her rights to the probate homestead and exempt property by the premarital agreement in question.

The trial court correctly concluded that the agreement was void to the extent that income or other property acquired during marriage should be the separate property of the party who earned or whose property produced such income or acquisition. Such provisions were no more than a mere agreement between the parties to establish the character of the property prior to its acquisition during marriage in violation of both the Texas Constitution and the Family Code, Tex.Const, art. XVI, § 15; Tex.Family Code Ann. § 5.01 (1975); see Gorman v. Gause, 56 S.W.2d 855 (Tex.Comm’n App. 1933, jdmt. adopted); Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925); Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565 (1961). Mrs. Williams contends that the entire agreement is vitiated by these void provisions. On the assumption that the provisions in question constituted part of the consideration for the agreement, she asserts that when a contract is based upon several considerations, one or more of which is illegal, then the entire contract is void. Edwards County v. Jennings, 89 Tex. 618, 35 S.W. 1053 (1806); Patrizi v. McAninch, 153 Tex. 389, 269 S.W.2d 343 (1954). We disagree.

We are of the opinion that the agreement here is controlled instead by the rule that where the consideration for the agreement is valid, an agreement containing more than one promise is not necessarily rendered invalid by the illegality of one of the promises. In such a case, the invalid provisions may be severed and the valid portions of the agreement upheld provided the invalid provision does not constitute the main or essential purpose of the agreement. See Wicks v. Comves, 110 Tex. 532, 221 S.W. 938 (1920); C. C. Slaughter Cattle Co. v. Potter County, 235 S.W. 295 (Tex.Civ. App. — Amarillo 1921), aff’d, 254 S.W. 775 (Tex.Comm’n App.1923, jdmt. adopted); cf. Smith v. Morton Independent School District, 85 S.W.2d 853 (Tex.Civ.App. — Amarillo 1935, writ dism’d). See also 6A A. Cor-bin, Contracts § 1521 (1962); J. Calamari & J. Perillo, Contracts § 22-4 (2d ed. 1977); 17 Am.Jur.2d, Contracts § 230 (1964). Mutual promises to marry, subsequently performed, provide valid consideration for the premarital agreement in question. The invalid provisions of the agreement are only a part of the many reciprocal promises in the agreement concerning the rights of the parties to the marriage. Moreover, they did not constitute the main or essential purpose of the agreement. Therefore, we hold that the trial court was correct in severing the invalid provisions from the premarital agreement and enforcing the valid provisions regarding Mrs. Williams’ waiver of her rights as a surviving spouse to the homestead and other exempt property.

Accordingly, we reverse the judgment of the court of civil appeals and affirm that of the trial court.

Dissenting opinion by CHADICK, J., joined by STEAKLEY and POPE, JJ.

CHADICK, Justice,

dissenting.

I respectfully dissent. I would affirm the judgment of the court of civil appeals.

On September 5, 1973, Mildred Diseh Lawrence and William Wesley Williams, Sr. executed an antenuptial agreement. Four days later they were married. The ante-nuptial agreement was evidenced by two separately executed documents which the trial court correctly treated as a single contract. One agreement contained these provisions:

Whereas the parties desire that all property now owned or hereafter acquired by each of them shall, for testamentary disposition, be free from any claim of the other that may arise by reason of their contemplated marriage,

It is therefore agreed:

1. Property to be separately owned. After the solemnization of the marriage between the parties, each of them shall separately retain all rights in his or her own property, whether now owned or hereafter acquired, and each of them shall have the absolute and unrestricted right to dispose of such separate property, free from any claim that may be made by the other by reason of their marriage, and with the same effect as if no marriage had been consummated between them.

The supplemental agreement listed the properties that each spouse would bring into the marriage and then provided:

5. All income from the separate estate of each party, including dividends, interest, rents and salaries, and any increases, sales proceeds, reinvestments or changes in said separate estate, shall remain under control of the party receiving the same and shall be deposited in such party’s separate account. It is the intent of the parties that such income, except for the personal living expenses hereinabove set forth, shall remain the separate property of each party.

The trial court withdrew the case from the jury and rendered judgment. It declared, as recited in the judgment, that the contract was void insofar as it provided “that income or other property acquired during marriage . . . should be the separate property of the party who earned or whose property produced such income or acquisition.” That, of course, was a correct decision, since the contractual provision violated section 15 of article XVI of the Texas Constitution, as well as section 5.01 of the Texas Family Code. Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565 (1961); Gor-ma n v. Gause, 56 S.W.2d 855 (Tex.Comm’n App.1933, jdmt. adopted); Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925).

The trial court ruled, however, that the part of the agreement which relinquished the constitutional and statutory right to the homestead was valid. It then concluded that the void and valid parts of the single contract were severable and that Mrs. Williams had relinquished her rights to the homestead.

I.

As shown by the portion of the contract quoted above, the words which purport to make separate property of “all property now owned or hereafter acquired by each of them,” were inextricably mixed with the words which are relied upon to effect a waiver of the homestead. The two subjects are inseparably included in the same sentence, and it is only by construction that one can determine that the parties were also contracting about the homestead rights of the survivor. We held in Land v. Marshall, 426 S.W.2d 841, 849 (Tex.1968), that an entire trust failed when the voidness of one-half of the trust disrupted the whole scheme and plan for the trust in a manner beyond the trustor’s contemplation. The same rule should apply in this case. Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146, 150 (1947). There is, however, a more basic reason that this premarital contract should be held void.

II.

The protection of a widow from creditors following her husband’s death finds its origins in the Spanish law. Green v. Crow, 17 Tex. 180,184 (1856). The Third Congress of the Republic enacted the Exemption Act of 1839, 2 H. Gammel, Laws of Texas 125 (1898); Hartley’s Digest of the Laws of Texas, art. 1270, at 405-06 (1850), and the Seventh Congress in 1843 amended the probate law by requiring the judge of the probate court to set apart the exempt real and personal property in the husband’s estate “for the sole use and benefit of the widow and children of the deceased.” 2 H. Gammel, Laws of Texas 834 (1898). When the Republic joined the United States, Texas became the first state to incorporate into its fundamental law a provision protecting the homestead rights of the family. W. Nunn, Texas Homestead and Other Exemptions, § 3 (1931); Cole, The Homestead Law in Texas, 3 Texas L.Rev. 217, 233 n. 74 (1925).

The first constitution of the State of Texas defined the homestead, freed it from forced sale, and then said “nor shall the owner, if a married man, be at liberty to alienate the same, unless by the consent of the wife, in such manner as the legislature may hereafter point out.” 2 H. Gammel, Laws of Texas 1294 (1898). The first legislature responded in 1846 by enacting section 26 of the 1846 Probate Act which

set apart for the sole use and benefit of the widow and children, if there be either or any, of the deceased, all such property as by the Constitution and law of the State, has been or shall be declared not to be subject to forced sale . . . . 1846 Tex.Gen.Laws, An Act To Organize Probate Courts, § 26, at 317-18; 2 H. Gam-mel, Laws of Texas 1623-24 (1898).

That section also provided that when the estate contained none of the exempted “specific articles,” the probate judge was empowered to conduct a sale of the deceased’s property to procure them.

The Constitutions of 1861, 1866, and 1869 contained provisions which protected the homestead. W. Nunn, Texas Homestead and Other Exemptions, § 4 (1931). Our present Constitution of 1876 enlarged the homestead exemption beyond those of the earlier constitutions and extended its benefits to “unmarried adults, male and female.” The constitutional protection of the right has, since 1876, been embodied in sections 50-52 of article XVI of the Constitution. The homestead right of the surviving spouse and children is found in section 52 in these words:

On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same.

Strong and sound policies have supported and .enforced the homestead right from the earliest times in Texas. As stated by Chief Justice Hemphill, the object of the homestead law was

to confer on the beneficiary a home as an asylum, a refuge which cannot be invaded nor its tranquility or serenity disturbed, and in which may be nurtured and cherished those feelings of individual independence which lie at the foundation and are essential to the permanency of our institutions. As a measure of sound policy, it cannot be too highly commended .... Wood v. Wheeler, 7 Tex. 13, 22 (1851).

Justice Lipscomb in Trawick v. Harris, 8 Tex. 312, 314-15 (1852), stressed the soundness of the policy for the homestead protection.

That the interest and protection of the wife entered largely into the consideration that induced the provision in our Constitution protecting the homestead there cannot be the smallest doubt; that she should have an asylum from which the creditor by the process of the law could not force her and her children, and rudely drive them from a home sanctified by so many sweet and endearing recollections, to become homeless and houseless wanderers, to be exposed not only to physical suffering but also to the more baneful and blighting influences so often and so successfully brought to bear on the unfortunate, when necessity and not the will consents to infamy. Protect the home of the wife, and the opportunity is in some measure afforded her by frugality and honest industry to support herself and children, and to prevent some of the worst calamities that the profligacy of the husband would bring on them. These were doubtless some of the considerations that influenced the framers of our Constitution in ingrafting the homestead protection as a cardinal law of the land.

The homestead laws are designed to protect the stability and welfare of the state. Andrews v. Security Nat'l Bank, 121 Tex. 409, 50 S.W.2d 253, 256 (1932); Black v. Rockmore, 50 Tex. 88, 96 (1878); 2 G. Thompson, Real Property, § 970 (2d ed. 1939). By protecting citizens against being driven from their homes, there is some measure of protection against their becoming dependent on the state for housing. Moreover, the protection of the home is intended to encourage citizens to contribute as productive members of society. Tex. Const.Ann. art. XVI, § 50, comment (Vernon 1955); W. Nunn, Texas Homestead and Other Exemptions, § 2 (1931); 2 G. Thompson, Real Property, § 1970 (2d ed. 1939). The Constitution’s protection of the family has been expanded by a judicial history of liberal construction which effectuates the homestead law’s beneficial purpose, “in accord with the humane principles and wise governmental policy upon which all homestead laws rest.” Woods v. Alvarado State Bank, 118 Tex. 586,19 S.W.2d 35, 38 (1929). The homestead law “is entitled to the most liberal construction for the accomplishment of its objects.” Trawick v. Harris, 8 Tex. 312, 316 (1852). See also Andrews v. Security Nati Bank, 121 Tex. 409, 50 S.W.2d 253, 256 (1932); Hall v. Fields, 81 Tex. 553, 17 S.W. 82 (1891); Blum v. Gaines, 57 Tex. 119,121 (1882); Black v. Rockmore, 50 Tex. 88, 96 (1878); Allison v. Brookshire, 38 Tex. 199, 201 (1873); Reconstruction Finance Corp. v. Burgess, 155 S.W.2d 977, 980 (Tex. Civ.App.—Waco 1941, writ ref’d); Panhandle Constr. Go. v. Head, 134 S.W.2d 779, 781 (Tex.Civ.App.—Amarillo 1939, writ ref’d).

The answer to our problem, while found in the history and the purposes of the homestead, is apparent in the Constitution itself. Article XVI, section 52, of the Texas Constitution states that upon the death of the husband or wife, or both, the homestead descends and vests as other real property, but then adds a positive prohibition about partitioning under the circumstances of this case. These are the words of the Constitution, which control our decision:

but it [the homestead] shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same.

It may be argued that, there being no children born of this marriage, effect should be given the antenuptial agreement. In fact, some jurisdictions make the distinction and permit an antenuptial agreement to forego homestead if there are no children. See, e. g., Zachman v. Zachman, 201 Ill. 380, 66 N.E. 256 (1903). Those cases do not arise under a direct constitutional prohibition as we have in Texas. The Texas Constitution directly addresses both the situation in which there are children and the situation in which there are none. It treats the two identically, and specifically prohibits a partition in each instance. To permit the relinquishment in this instance should logically compel the same result when the survivor has children at home. It is the clarity of the constitutional provision, no doubt, which explains why this problem has not previously been presented to a Texas court.

Some states have considered whether a premarital agreement may operate to defeat a homestead, and there is a conflict between their decisions. The agreements have been held void in Arkansas, Kansas, North Dakota and Vermont. Burnes v. Burnes, 203 Ark. 334,157 S.W.2d 24 (1941); In re Neis’ Estate, 170 Kan. 254, 225 P.2d 110 (1950); In re Place’s Estate, 166 Kan. 528, 203 P.2d 132 (1949); In re Garden’s Estate, 158 Kan. 554, 148 P.2d 745 (1944); Boulls v. Boulls, 137 Kan. 880, 22 P.2d 465 (1933); Watson v. Watson, 106 Kan. 693, 189 P. 949 (1920); Swingle v. Swingle, 36 N.D. 611, 162 N.W. 912 (1917); Mann v. Mann’s Estate, 53 Vt. 48 (1880).

Other jurisdictions, including Arizona, Illinois, Iowa, Minnesota, and Oregon, have given effect to the antenuptial agreements. Smith v. Tang, 100 Ariz. 196, 412 P.2d 697 (1966); McMinimee v. McMinimee, 238 Iowa 1286, 30 N.W.2d 106 (1947); Finn v. Grant, 224 Iowa 527, 278 N.W. 225 (1938); In re Devoe’s Estate, 113 Iowa 4, 84 N.W. 923 (1901); Peet v. Peet, 81 Iowa 172, 46 N.W. 1051 (1890); Appleby v. Appleby, 100 Minn. 408, 111 N.W. 305, 117 Am.St.Rep. 709 (1907); In re Moore’s Estate, 210 Or. 23, 307 P.2d 483, mandate recalled, 210 Or. 44, 308 P.2d 180 (1957).

When the Texas Constitution addresses a problem, as it has in the case of survivor’s right to a homestead, precedents from other jurisdictions become immaterial and unpersuasive. But of the jurisdictions considering the question of validity, apparently only the Kansas courts contended with a similar constitutional homestead provision. Kan. Const, art. XV, § 9. It has been held in Kansas that the probate homestead rights provided by the Kansas Constitution, Kan. Const, art. XV, § 9, and statute, Kan.Prob. Code Ann. § 59-401, are for the protection of the family. Those rights cannot be varied or avoided by an antenuptial contract which provides that, should the wife survive the husband, she is to have no part in his estate. In re Neis’ Estate, 170 Kan. 254, 225 P.2d 110, 117-18 (1950); In re Garden’s Estate, 158 Kan. 554, 148 P.2d 745, 753-54 (1944); Boulls v. Boulls, 137 Kan. 880, 22 P.2d 465, 467 (1933). The policy considered by the Kansas courts in holding void any antenuptial agreements to waive the probate homestead is consistent with the approach that Texas has taken on the protection of homestead rights. The constitutional basis for voiding such agreements is stronger in Texas because the probate homestead provision, Tex.Const. art. XVI, § 52, specifically defines the right.

III.

Despite the constitutional protection that Texas has historically given the probate homestead, the majority holds that the right may be waived by antenuptial agreement. Even if that is true, nowhere in the present antenuptial agreement is the homestead right expressly mentioned or specifically waived. The agreement contains only the general language that each spouse’s separate property shall be “free from any claim” by the other spouse that may arise as a result of the marriage. It must be in this general language, if at all, that the majority finds waiver of the homestead right.

It has been held that “contracts of the wife in restraint of her right to the homestead, made either in contemplation of marriage or after marriage, should be closely scrutinized.” McCormick v. McNeel, 53 Tex. 15, 20 (1880). Because of the importance of the homestead right and the public policy that creates its agreements to abridge the right, if upheld, should be done so only if, after close examination, it is determined that the waiver is clear and explicit. “The right to a widow’s . probate homestead cannot be waived by an ante-nuptial agreement not clear and explicit as to what rights were being waived.” Smith v. Tang, 100 Ariz. 196, 412 P.2d 697, 704 (1966). The constitutionally protected home of a widow should not be taken away because of a generally worded antenuptial waiver. Moreover, contrary to the recitation in the majority opinion, there is nothing in this summary judgment record which shows that Mrs. Williams had full knowledge of the homestead right alleged to have been waived.

The antenuptial agreement in the present case fails to adequately identify the probate homestead or to clearly show that Mrs. Williams was waiving her right to it. Waiver should not be enforced against her.

I would affirm the judgment of the court of civil appeals.

STEAKLEY and POPE, JJ., join in this dissent.

      . Tex.Const. art. XVI, § 52 reads as follows: “On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same.”

      . Tex.Rev.Civ.Stat.Ann. art. 3836 (Supp. 1976-77).

      . Tex.Family Code Ann. § 5.41 (1975) provides in pertinent part:
      “(a) Before marriage, persons intending to marry may enter into a marital property agreement as they may desire.
      “(b) The agreement must be in writing and subscribed by all the parties.”

      . § 15. Separate and community property of husband and wife
      All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of the wife; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as that held in common with her husband . . .

      . Section 5.01. Marital Property Characterized
      (a) A spouse’s separate property consists of:
      (1) the property owned or claimed by the spouse before marriage;
      (2) the property acquired by the spouse during marriage by gift, devise, or descent; and
      (3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
      (b) Community property consists of the property, other than separate property, acquired by either spouse during marriage.

      - AN ACT Entitled an act to exempt certain property therein named from execution.
      Sec. 1. Be it enacted by the Senate and House of Representatives of the Republic of Texas in Congress assembled, That from and after the passage of this act, there shall be reserved to every citizen or head of a family in this Republic, free and independent of the power of a writ of fire facias, or other execution issuing from any court of competent jurisdiction whatever, fifty acres of land or one town lot, including his or her homestead, and improvements not exceeding five hundred dollars in value, all house hold and kitchen furniture, (provided it does not exceed in value two hundred dollars, all implements of husbandry,) (provided they shall not exceed fifty dollars in value,) all tools, apparatus and books belonging to the trade or profession of any citizen, five milch cows, one yoke of work oxen or one horse, twenty hogs, and one year’s provisions; and that ail laws and parts of laws contravening or opposing the provisions of this act, be and the same are hereby repealed: Provided, The passage of this act shall not interfere with contracts between parties heretofore made.
      JOHN M. HANSFORD, Speaker of the House of Representatives.
      DAVID G. BURNET, President of the Senate. Approved, January 26, 1839.
      MIRABEAU B. LAMAR.

      . Tex.Const. art. VII, § 22 (1845).

      . In McCormick the widow elected to recover on a promissory note executed in consideration for an antenuptial deed relinquishing her homestead right and not to recover the homestead itself. The Court concluded that since the widow voluntarily elected to recover on the note at the trial, it would not interfere on her behalf to protect her homestead right.


source: Caselaw Access Project

author: CHADICK, Justice.

license: Public Domain

text:
    Rose F. MATHES, Individually and as Independent Executrix of the Estate of Bill Nabors, Petitioner, v. Etta KELTON, Respondent.
    No. B-7437.
    Supreme Court of Texas.
    June 14, 1978.
    Rehearing Denied July 12, 1978.

      Jay U. Kirkman, Amarillo, for petitioner.
    Miller, Miller & Russell, Dee Miller, Amarillo, for respondent.
   CHADICK, Justice.

Mrs. Rose Mathes brought this suit for the return of a diamond ring and several pieces of furniture alleged to be owned by her and wrongfully held by Mrs. Etta Kel-ton. Mrs. Kelton filed a cross-action for judgment on a promissory note executed by Mrs. Mathes and for foreclosure on the ring which was pledged as security for the note. At the conclusion of the nonjury trial, the trial judge orally rendered judgment. He ordered Mrs. Kelton to return the furniture to Mrs. Mathes and gave Mrs. Kelton judgment against Mrs. Mathes on the note. Concerning the ring, the statement of facts shows that the trial court ordered it returned to Mrs. Mathes. Accordingly, a written judgment was prepared and signed on December 3, 1976 which complied with the oral pronouncements.

On December 13, 1976, Mrs. Mathes filed a motion for new trial. Also on that date, without notice to Mrs. Mathes, the trial judge signed a second judgment which altered the judgment of December 3 to the extent that Mrs. Kelton was given possession of the ring under foreclosure of the lien securing the note. Mrs. Mathes filed an amended motion for new trial on January 3, 1977. At the hearing on that motion, the trial judge set aside the December 13 judgment on the ground that Mrs. Math-es was not afforded proper notice of the correction, and set a subsequent hearing for determination of whether a corrected judgment should be rendered in the case. Mrs. Mathes’ amended motion for new trial was overruled in an order dated February 9, 1977. After the second hearing, the trial judge rendered a “corrected judgment” on February 11, 1977 which stated that it was a correction, nunc pro tunc, of the December 4 [sic], 1976 judgment. Again possession of the ring was awarded to Mrs. Kelton under foreclosure of the security interest. Mrs. Mathes appealed, arguing that the February 11 judgment did not validly change the December 3 judgment. She contends that changing possession of the ring constituted the correction of a judicial error which cannot be done by a judgment nunc pro tune.

The Court of Civil Appeals upheld the validity of the February 11 judgment. 565 S.W.2d 78. It concluded that the change in the award of possession of the ring was a clerical error and, therefore, correction by the judgment nunc pro tunc was valid. In its determination that a clerical error was involved, the Court relied upon the trial judge’s statements that the December 3 judgment did not accurately reflect his decision in the case. He stated that he always intended for Mrs. Kelton to have possession of the ring under a foreclosure of the lien securing the note.

It is well settled that a judicial error cannot be corrected by a judgment nunc pro tunc. Finlay v. Jones, 435 S.W.2d 136 (Tex.1968). One example of the correction of a judicial error is where the trial court determines that the terms of the judgment as rendered should be changed. Dikeman v. Snell, 490 S.W.2d 183 (Tex. 1973); McHone v. Gibbs, 469 S.W.2d 789 (Tex.1971); Reavley and Orr, Trial Court’s Power to Amend Its Judgments, 25 Baylor L.Rev. 191, 197 (1973). In the present case, by changing the party entitled to possession of the ring from Mrs. Mathes to Mrs. Kel-ton, the February 11 judgment materially altered the substance of the December 3 judgment. That change constituted the correction of a judicial error which cannot be validly accomplished by a judgment nunc pro tunc.

While the February 11 judgment cannot be upheld as a judgment nunc pro tunc, it is nevertheless a valid judgment. A trial court has plenary power to reverse, modify, or vacate its judgment at any time before it becomes final. Turman v. Tur-man, 123 Tex. 1, 64 S.W.2d 137 (1933); Wear v. McCallum, 119 Tex. 473, 33 S.W.2d 723 (1930); Reavley and Orr, supra at 205-06. In the present case where a timely amended motion for new trial was filed, the trial court’s judgment did not become final until 30 days after that amended motion was overruled. Rule 329b(5), Texas Rules of Civil Procedure; Dallas Storage & Warehouse Company v. Taylor, 124 Tex. 315, 77 S.W.2d 1031 (1934); Thompson v. Gibbs, 504 S.W.2d 630 (Tex.Civ.App. — Dallas 1973, mand. overruled). The rendition of the February 11 judgment, two days after Mrs. Mathes’ amended motion for new trial was overruled, occurred within the trial court’s period of plenary power over its judgment. The judgment of February 11 is therefore a valid final judgment.

The judgment of the Court of Civil Appeals is affirmed.

      . The twentieth day after the original motion for new trial was filed fell on January 2, 1977. However, since that day was a Sunday, the amended motion for new trial was timely filed on the following day. Rule 4, Texas Rules of Civil Procedure.

      . The Court of Civil Appeals modified the trial court’s judgment as to the foreclosure and ordered the ring sold.

      . While the February 11 judgment states that it is a correction, nunc pro tunc, that language does not limit the trial court’s power to alter in any way its judgment in this case. In determining the validity of a judgment, it is substance and not the label or form that is controlling. See International Security Life Insurance Company v. Spray, 468 S.W.2d 347 (Tex.1971).


author: POPE, Justice.

text:
    SCHWARZ-JORDAN, INC. OF HOUSTON, Petitioner, v. DELISLE CONSTRUCTION CO., Respondent.
    No. B-7486.
    Supreme Court of Texas.
    July 19, 1978.

      Melvin M. Engel, Dale A. Dossey, Houston, for petitioner.
    Richard B. Davies, B. J. Hooks, Houston, for respondent.
   POPE, Justice.

This is a breach of contract action. Schwarz-Jordan, Incorporated, sued Delisle Construction Company for failure to pay monies due under a written subcontracting agreement. In a non-jury trial, the trial court rendered judgment for plaintiff Schwarz-Jordan. The court of civil appeals reversed and rendered judgment that Schwarz-Jordan take nothing. 561 S.W.2d 619. We reverse the judgment of the court of civil appeals and remand the cause to that court.

Delisle Construction Company had contracted with the City of Houston to remodel the concourse and flight station interiors at Houston Intercontinental Airport. Delisle subcontracted the installation of a new type of metal ceiling to Schwarz-Jordan under a standard subcontracting agreement. The subcontract incorporated the provisions of the prime contract by reference. Since the metal ceiling concept was new, both the prime contract and the subcontract required the construction of a model (mock-up) and its approval by the city engineer before further work on the metal ceiling could proceed.

Schwarz-Jordan constructed the mock-up at the airport. The city engineer then disapproved the mock-up and eliminated the metal ceiling from the construction plans. The basis for the engineer’s disapproval was the concept itself and not that Schwarz-Jor-dan’s work was unsatisfactory. The City of Houston paid the prime contractor, Delisle, an amount undisclosed by the record for the preparation, installation and removal of the mock-up at the airport. Delisle paid Schwarz-Jordan nothing for its work on the project, and Schwarz-Jordan brought this suit for breach of contract.

The court of civil appeals interpreted the portion of the mock-up provision emphasized below, as it was incorporated into the subcontracting agreement, as a condition precedent to any liability on the subcontracting agreement:

Mock-up : Contractor shall install suspension members for curved section and 10 feet of straight section in one concourse and install the pans. Upon approval of the installation work may proceed per schedule.

The prime contract provided (emphasis added):

Mock-up: Contractor shall install suspension members for curved section and 10 feet of straight section in one concourse and install the pans. Upon approval of the installation work may proceed per schedule.
* * * * * *
Whenever the words “approved,” “satisfactory,” ... or similar words or phrases are used, it shall be assumed that the word “Engineer” follows the verb as the object of the clause, such as “approved by the Engineer.”
******
The Engineer may direct that alterations, deviations, additions or omissions be made to or from the work as indicated or required.
******
15. Changes and Extra Work — Within the general scope and sort of work or construction covered by the contract, the Engineer may, without notice to the surety on the Contractor’s bond, make such changes in .the design, materials or machinery or the plans for installation or construction or other quality of character of the work or materials required as he may find necessary to the accomplishment of the general purpose of the work or construction contracted for. .
If any change so ordered results in an increase or decrease of cost to the Contractor an addition to or deduction from the contract price on account thereof shall be computed by the Engineer as provided in Section 16 of this specification. .
16. Compensation for Extra Work; Allowance or Deduction on Account of Changes —Extra work ordered in writing by the Engineer as provided in Section 15 of this specification shall be paid for on the basis of the Engineer’s computation of the aggregate of labor, material, truck hire and equipment rental entering into the performance thereof as follows: .
Deduction from or addition to the contract price for any lump sum bid item on account of a change order, ordered as provided in Section 15 of this specification, shall be computed by the Engineer as follows:
******
An allowance shall be made in favor of the Contractor for the work done under such change order, computed in the same manner hereinabove provided for the computation of compensation for extra work. The Engineer shall then determine, based on the Contractor’s breakdown between labor and material, equipment rent and other direct cost items, the cost to the Contractor if he were to have done the work omitted under the change order. To the sum so determined, the Engineer shall add 15 percent to cover the estimated overhead and profit to have been made by the Contractor on the omitted work. The Engineer will then determine the difference between the allowance so computed for the additional work done under the change order and deduction so computed on account of the work omitted under the change order, and the difference so determined shall be either added to or deducted from the lump sum bid, as the case may be. ******

The subcontracting agreement’s Article X provided, in part:

ARTICLE X
In addition to the foregoing provisions the parties also agree: That the Subcontractor shall: .
(1) Be bound to the Contractor on the terms of the Contractor Documents and this Agreement, and assume toward the Contractor all the obligations and responsibilities that the Contractor, by those documents, assumes toward the Owner, as applicable to this Subcontract. .
(13) Make any and all changes or deviations from the original plans and specifications without nullifying the original contract when specifically ordered to do so in writing by the Contractor. The Subcontractor prior to the commencement of this revised work, shall submit promptly to the Contractor written copies of the cost or credit proposal for such revised work in a manner consistent with the Contract Documents.
⅜ sfc * ⅜ ⅜ *
That the Contractor shall—
(19) Be bound to the Subcontractor by all the obligations that the Owner assumes to the Contractor under the Contract Documents and by all the provisions thereof affording remedies and redress to the Contractor from the Owner insofar as applicable to this Subcontract.
* * * * * *

We do not agree with the holding that the mock-up provision of the contract was a condition precedent to defendant’s obligation. The clear language of the contract directs the contractor and subcontractor to build a mock-up. The engineer’s approval was not, however, a condition precedent to the obligation to build a mock-up. It was at most a condition precedent to the obligation to complete the entire linear metal ceiling.

Terms such as “if,” “provided that,” or “on condition that,” usually indicate an intent that the provision be a condition precedent rather than a promise; however, they or similar expressions are not necessary and whether a contractual provision is a condition rather than a promise is determined from the whole instrument. Hohen-berg Brothers Co. v. George E. Gibbons & Co., 537 S.W.2d 1 (Tex.1976); Hanson Southwest Corp. v. Dal-Mac Construction Co., 554 S.W.2d 712, 720 (Tex.Civ.App.— Dallas 1977, writ ref’d n. r. e.); 17 Am. Jur.2d Contracts § 321, at 752 (1964). The words used in the prime contract and the subcontracting agreement (“shall install suspension members . . .. Upon approval, . . . work may proceed per schedule”) [Emphasis added] are not those usually associated with a condition precedent.

The contractor was paid by the City pursuant to the same provision for the work done by the subcontractor. Sections 15 and 16 of the main contract, coupled with Article X, subdivisions (13) and (19) of the subcontracting agreement, provide on their face for partial payments to the subcontractor when its work is omitted because of some change in the building plans. The contract as a whole not only permits an interpretation of the disputed provision as other than a condition precedent; it strongly indicates the provision is a promise subject to subsequent modification after partial performance by building the mock-up. The terms provide for payment for that partial performance.

It is a rule of construction that a forfeiture by finding a condition precedent is to be avoided when possible under another reasonable reading of the contract. See Hohenberg Brothers Co. v. George E. Gibbons & Co., supra; Henshaw v. Texas Natural Resources Foundation, 147 Tex. 436, 216 S.W.2d 566, 570 (1949); 17 Am.Jur.2d Contracts § 321, at 752 (1964). Applying that rule, we hold that the “mock-up” provision of the contract is not a condition precedent to any liability.

We have examined Delisle Construction Company’s brief in the court of civil appeals for other meritorious points to sustain the judgment of the intermediate court. The only point which would entitle Delisle to rendition of judgment that Schwarz-Jordan take nothing is its point that there is no evidence to support the trial court’s award of damages. Mr. Schwarz, the president of Schwarz-Jordan, testified that his corporation spent $10,684.19 to build the mock-up, and that the expenditures were reasonable and necessary. He demonstrated by calculations based on that expenditure figure that the liquidated damages provision of the contract provided for more than the $12,000 lost profits actually awarded him. Based on current materials, labor and engineering costs, of which Schwarz had knowledge, he testified that the profit on the whole job would be $25,-000. There is evidence to support the trial court’s award.

Delisle had points before the court of civil appeals asserting that the trial court’s findings about the costs incurred by Schwarz-Jordan in building the mock-up and its loss of profits were not supported by factually sufficient evidence and were against the great weight and preponderance of the evidence. We must remand this cause to the court of civil appeals to pass on those points over which it has the exclusive jurisdiction. McKelvy v. Barber, 381 S.W.2d 59 (Tex. 1964).

The judgment of the court of civil appeals is reversed, and this cause is remanded to the court of civil appeals.


author: PER CURIAM.

text:
    In re Martin A. JOHNSON, Official Court Reporter.
    No. B-7120.
    Supreme Court of Texas.
    July 19, 1978.
    James M. Whitten, Sinton, for petitioner.
    Wood, Burney, Nesbitt & Ryan, Bruce D. Viles, Corpus Christi, for respondent.
   PER CURIAM.

This cause developed as a contest between the City of Ingleside and Martin Johnson, the court reporter for the 156th District Court. The City protested the reporter’s fees for preparing a statement of facts, and after a hearing, the trial judge reduced the amount charged by the reporter and then approved a fee of $1,991.00. The City, not satisfied, complained on appeal that article 2324 is unconstitutional. That article pertains to the fixing of reasonable reporter’s fee when objection is made. The court of civil appeals sustained the City’s points that a part of article 2324 is unconstitutional, reversed the judgment approving the above fee, and remanded the cause to the trial court to determine the fees in accord with the statute of 1961, that being the one which article 2324 replaced. That judgment reduces the fees considerably more.

Our problem in this application for writ of error is procedural in nature. The aggrieved party, Martin Johnson, the court reporter, has not preserved any point which attacks the judgment or the opinion of the court of civil appeals. The City, which prevailed in the court of civil appeals, is our petitioner and makes the complaint that the 1961 statute is also unconstitutional. It is our opinion that the City has already received the relief to which it is entitled and is not now an aggrieved party. Trad v. General Crude Oil Co., 474 S.W.2d 183, 184 (Tex.1971); Shell Petroleum Corp. v. Grays, 131 Tex. 515, 517-18, 114 S.W.2d 869-70 (1938). The Attorney General has filed an application which argues that article 2324 is a constitutional statute. We regard and treat the brief by the Attorney General as an amicus curiae brief. We accordingly refuse Martin Johnson’s application for writ of error with the notation, Refused, No Reversible Error. The City’s application is dismissed with the notation, Dismissed for Want of Jurisdiction. Rule 483, Tex.R. Civ.P.

These orders are not to be understood as approving the holding by the court of civil appeals that the third paragraph of article 2324 is unconstitutional. See State v. Southwestern Bell Telephone Co., 526 S.W.2d 526 (Tex.1975); Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100 (Tex.Civ.App. — Amarillo 1971, writ ref’d n. r. e.); Wichita County v. Griffin, 284 S.W.2d 253 (Tex.Civ.App. — Fort Worth 1955, writ ref’d n. r. e.).

      . Tex.Rev.Civ.Stat.Ann. art. 2324 (Supp.1976).