47 Tex. 376 | Tex. | 1877
Counsel agree that the case is . made by plaintiff’s pleading, as follows: “Date of suit, October 7, 1875; George F. Randolph died intestate and insolvent, October 16, 1873; was the owner of the property in controversy jn his separate right, and at the date of his death he and his wile (appellee) occupied it as their homestead.
. “lie leaves no children, and no heirs, except his sister, Mrs.
“Appellee administered on estate. Succession still open. Issues raised on demurrer: Do appellants show a right of property and of partition ? Court below held not, and dismissed the case. Appealed from.
“ Assignment of errors: Court erred in sustaining defendant’s plea in abatement and demurrer, and in rendering judgment for defendant.”
We are of opinion that the court did not err in its judgment upon the case as here presented.
It is contended by appellants that, as the estate is insolvent, the homestead property was, and is, no part of the estate to be administered; and being separate property of the husband at the time of his death, the surviving wife, the appellee, was entitled to half ot it, and his sister, one of the appellants, Mrs. Carter, was entitled, as his heir, to the other half, under the general law of descent and distribution in this State. (Paschal’s Dig., art. 3422.)
Under the law of 1870, (Paschal’s Dig., art. 5487,) it would seem that the homestead was no part of the estate to be administered, whether it was insolvent or not. That article reads as follows, to wit:
“ The property reserved from forced sale by the Constitution and laws of this State, or its value, if there be no such property, does not form any part of the estate of a deceased person, where a constituent of the family survives.”
In the preceding section it is said, “ the term, estate of a deceased person, includes all the rights and obligations of the deceased as they existed at the time of his decease, together with all that has accrued thereto since, and the new charges to which it becomes subject.”
By a subsequent section it is provided, by way of explanartion, as it would seem, that “the object of administration is
These provisions of the statute make no distinction between the separate property and the community property, when it is made a homestead. Whether it is one or the other, or whether the estate is solvent or insolvent, property made a homestead under the Constitution and laws of this State, and being such at the decease of the husband, is left still as a homestead for the widow, she being the constituent of the family surviving, and is not regarded as part of the estate and taken into the administration, for the purpose either of paying debts or of partition amongst the heirs. Being the homestead of the family, consisting of husband and wife, upon the death of the husband, the wife surviving, it is declared by the statute to be no part of the estate of the deceased husband. It follows, as a necessary consequence, that it remains the homestead of the wife. The law attaches to it that effect and consequence, from it having been made and continuing to be the homestead at the time of his death. Under the general tenor of our decisions, it must be held that it will continue to be her homestead as long as she needs and uses it for that purpose. Butin case she abandons it, or in case of her death, it having been originally the separate property of the husband that was made the homestead, the question then arises, to whom does the property belong, he having left collateral heirs.
In a case under the law of 1848, similar in its facts to this, except that it was community property, it was held by this court that the wife took the absolute title to the property. That conclusion was reached by analogy to the provision for and disposition of an allowance’made by the statute in lieu of a homestead when there was none. (Green v. Crow, 17 Tex., 187.)
In both of these cases the contest was with creditors of the deceased, in insolvent estates, under the law of 1848. In this case, it is not believed to be necessary now to decide the question of ultimate title to the property, as between the widow and his heir, being his sister, because the facts, as presented in the record before us, do not make out a case of abandonment of the homestead by the widow. It does not follow that she has abandoned it, by not having lived on it since the death of her husband. The husband died on the 16th of October, 1873, and the suit was brought two years afterwards, lacking a few days, (5th October, 1875.) There may been many good causes for her not residing on it, other than the intention to finally abandon it as a homestead. The simple fact of her absence from it two years is not of itself an abandonment, and will not be so construed by this court, and that is a sufficient ground upon which to decide this case in favor of the widow.
Judgment aeeirmed.
