Eubank & Co. v. Landram, 1 Tex. L. R. 971

Eubank & Co. v. Landram

1 Tex. L. R. 971 | Tex. | 1883

Watts, J. Com. App.—

Neither of the propositions asserted by appellants can be maintained as sound. The constitution provides that the homestead “ shall not be partitioned among the heirs of the deceased during the life-time of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead.” In other words, the constitution protects the surviving husband or wife in their right to the homestead, whether as against- the heirs of the deceased or the creditors of the survivor, so long as.such survivor occupies the homestead as such. And this exemption does not depend upon the title being in the survivor at the time of the death of the other marital partner. Whether the title to the property be vested in the community, or be the separate property of the deceased or the survivor, is immaterial; so long as the survivor continues to occupy the homestead as such it is neither subject to execution norpartition among the heirs of the deceased marital partner. In this case it is not denied bub that the appellee has continued to occupy the land as his homestead ever since the death of his wife. As to who lives with him upon the property, as part of the family, is a matter of no consequence soever; so long as he occupies the property, whether with or without other relatives, being with him, it is-exempt from forced sale.

*249Upon the death of the wife, as a matter of inheritance a life estate to a one-third interest in the property vested in appellee and all the remaining title vested in the infant, and upon the death of the infant the title to the entire tract was vested in appellee by inheritance. The fact that descent was in this way cast upon appellee would not disrobe the property of its homestead character and thereby subject it to forced sale. It can never be justly charged against the statutes of descent and distribution that their operation is to work a forfeiture of constitutional rights as against those who are intended to be benefited by them. The authorities cited by appellant have no application to the questions involved in this case.

Affirmed.

[Opinion delivered April 18, 1883.]