Howard v. Marshall
48 Tex. 471
Tex.
1878
Check Treatment
Gould, Associate Justice.

B. G. Marshall, being a cripple and a single man, never married, lived on his plantation, in Fort Bend county, having with him no relatives or connections, and having no family, unless Duncan Marshall and wife Lettie, his former slaves, who, with then children and grandchildren, lived with him in the same house, managed his domestic affairs, and ministered to his infirmities, having *476Ms confidence and friendship as faithful servants, constituted such family. In 1871, B. G. Marshall died, leaving a will, the material part of which is as follows: “I give all of my property to my former true and faithful servants, Duncan Marshall and Ms wife, Lettie Marshall, during their lifetime, and at their death, but not until the death of both of them, to their grandchildren, Henry Marshall and Benjamin Green Marshall, the children of their daughter Ann Marshall, and Robert Willis and Fredonia Willis, the children of their daughter Lucy Willis. I would like my plantation to be carried on, that my former servants might have a home so long as they deported themselves correctly and made good hands. Of course, my debts will have to [be] paid; but I hope to live long enough to pay every cent I owe, and at my death I hope to owe nothing.” The will was written in 1867, several years before his death, and in the interim Duncan Marshall had died. B. G. Marshall died largely indebted, and the will having been probated, T. B. Howard, one of his creditors, was appointed administrator of the estate, with the will annexed. The appellee, Lettie Marshall, alleging that she was the principal devisee under the will, and a constituent member of the family, moved the court to set aside to her all such property as was exempted from execution or forced sale by the Constitution and laws of the State. This application, in which she was afterwards joined by her grandchildren, was resisted by the administrator, who denied that they were constituents of the family.

The issue thus made was submitted to a jury, who were charged by the court, that if B. G. Marshall had a family at the time of Ms death, composed of domestics or servants, who were “ recognized, considered, treated, and regarded by him as his family,” living in the same house, under the same roof, until he died, and they were left by him, when he died, in said house as surviving members of his family, the Constitution exempted the homestead of 200 acres, “ so long as such surviving family may continue to occupy it as a homestead.” *477The charge further instructed the jury, that “ the plaintiffs, if Benjamin G. Marshall had died without a will, could not have taken the property by inheritance from him, notwithstanding they were the surviving members of his family at the time of his death, and so recognized, treated, and regarded by him”; but that in such case his property, including the homestead, would have vested in his heirs at law, and if these heirs were not members of his family at his death, the property would so vest subject to administration and the payment of his debts. The charge proceeds: “But if it was the homestead of Benjamin G. Marshall in his lifetime, by reason of his having a family, he could have sold and disposed of such homestead either by deed or by will, provided he had no wife living and surviving him at the time of his death, and such deed or will would vest the title absolutely in the grantees under the deed, or in the devisees under the will, and in such case a homestead is freed from all liability to the debts of the creditors by the Constitution and laws of the State.”

Under this charge, there was a verdict for the plaintiffs, and judgment setting aside to them the homestead of 200 acres, from which judgment Howard, the administrator, appealed.

In our opinion, the record fails to show that B. G. Marshall ever had a family, within the meaning of" the Constitution, so as to give him a homestead.

The nature of the family intended is left undefined by the Constitution; but we are of opinion that the framers of that instrument had in view a family composed of husband, wife, and children, for whose protection, in the enjoyment of their homestead, they intended to provide.

"Whether the word, as used in the Constitution, may include other relatives or connections, it is not necessary in this case to decide; but we hold that the Constitution did not contemplate a family composed of persons neither related by blood nor connected by marriage. The object of the Constitution has been the subject of frequent comment and com*478mendation in this court, as being mainly to secure to the husband, wife, and children an asylum beyond the reach of the creditor. (Trawick v. Harris, 8 Tex., 314; James v. Thompson, 14 Tex., 466; Wood v. Wheeler, 7 Tex., 22; Green v. Crow, 17 Tex., 185; Franklin v. Coffee, 18 Tex.415; Hubbard v. Horne, 24 Tex., 272.)

The Probate laws of 1846 and 1848 each contained provisions securing the homestead to the widow and children, but not to others. Speaking of that provision in the law' of 1848, Chief Justice Wheeler says that “its object seems to have been to carry out and effectuate the beneficent object of those general laws, excepting the homestead and certain other enumerated property from forced sale.” (Hubbard v. Horne, 24 Tex., 272.) These enactments are indicative of the legislative construction of the Constitution. The Probate law of' 1870, which was in force at the date of Marshall’s death, contains the following provision: “ 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, when a constituent of the family survives.” (Paschal’s Dig., art. 5487.) In a subsequent section of this law, provision is made similar to that in former Probate laws, securing the exemption of one year’s provisions to the surviving widow and minor children or unmarried daughter; and it seems clear that it was not the design of this statute to change the constituents of the family, or to secure benefits to those not related to the deceased.

We know of no decision of this court which supports the view that an unmarried man and his servants or employes constitute a family entitled to a homestead under the Constitution. In the case of Wilson v. Cochran, Justice Lindsay expresses his opinion, that the term family was used in the Constitution “in its generic sense, embracing a household, composed of parents and children, or other relatives, or domestics and servants; in short, every collective body of persons living together within the same curtilage, subsisting in *479common, directing their attention to a common object—the promotion of their mutual interest and social happiness.” (31 Tex., 680.) The party claiming the exemption in that case was a single man, without wife or children, “ nor had he at any time domestics or servants on the premises,” and the decision was, that as he had no family living upon the premises at any time, he could not claim a homestead. Very evidently, the definition given of a family was not necessary to the disposition of the cause, and should not be regarded as supported by an authoritative decision.

In Taylor v. Boulware, 17 Tex., 77, Justice Lipscomb, speaking of the surviving husband, says: “ The death of the wife whilst it was his homestead, and his having no children, did not destroy its distinctive character of a homestead, he continuing to reside there with his slaves, hirelings, and niece, and her husband, Mr. McAlister. If he had been without servants, or any one with him, after the death of his wife, it would still have been his homestead so long as it continued to be his residence, and protected from a forced sale.” The decision seems to be based on the latter ground; but at all events there was a niece, and the case is no authority for holding a homestead to be secured to a single man, never married, who has no relatives or connections living with him.

It does not appear to have been claimed that Marshall had a homestead as a single man, unless he and his servants constituted a family; and whatever may have been the law prior to or under the exemption of 1866, it is clear, that under the exemption statute in force at the time of his death there was no homestead exemption save that to the family. In Cobbs v. Coleman, 14 Tex., 594, the opinion was expressed that the homestead exemption of fifty acres contained in the act of 1839 (Paschal’s Dig., art. 3798) applied to single men, and was not repealed by the Constitution of 1845. In the subsequent case of Philleo v. Smalley, 23 Tex., 502, the court say: “It will be worthy of consideration, whenever the *480question is distinctly presented to this, court, whether or not the execution law of 1839 is repealed by the provisions of the Constitution, so far as it exempts homesteads from forced sale.” In 1866, however, a different exemption law was enacted, under which the case of Wilson v. Cochran, supra, was decided, substantially holding that -a single man, without a family, had no homestead. (Paschal’s Dig., art. 3798a.) In 1870, the statute as to exemptions was again changed, by an act entitled “An act defining the homestead and other property exempt from forced sale in this State.” The first section simply reenacts the constitutional provision as to homesteads, in the same language. The second section regulates the other property reserved to any family exempt from forced sale, and winds up by exempting to any citizen not a head of a family certain personal properly. The third section repeals all laws and parts of laws contravening the provisions of that act. There can be no question that this act superseded all former laws on the subject of exemptions, and that under it there is no homestead exemption save to the family.

Our conclusion is, that the record does not show that B. G. Marshall ever had a homestead. It does not, then, become necessary for us to consider whether there is any foundation for the distinction taken by counsel for appellant, between the family entitled to an exemption under the Constitution, and the family having an interest in the homestead after the death of the head. If B. G. Marshall had no homestead at his death, it is useless to consider whether there was a surviving constituent of his family entitled thereto; or whether he had power to dispose of a homestead by will, so as to defeat the claims of creditors; or yet whether the proper construction of his will was that he designed to make such a disposition thereof. To meet the possibility that other facts may be developed showing that Marshall in fact had a family and a homestead, a possibility which we would scarcely entertain, were it not for the fact, that the able counsel for appellant, both on the trial below and in this court, seemed *481to concede that there was such a family, we will say, that were it necessary for the disposition of the case, we should decide each of those propositions, or questions, in the negative. I will remark for myself, in closing this opinion, that the indefiniteness of the Constitution, on the subject of the homestead, might well he supplied by further legislation.

The reason of the homestead exemption may extend to cases of a single man supporting his aged parents, or his helpless relatives less nearly related to him, or to other cases which may be imagined. Well-considered legislation on the subjects of the homestead and community property, more fully defining the rights of parties, is, in my opinion, and I am authorized to add in the opinion of the court, most urgently called for.

The judgment is reversed and the cause remanded.

Reversed and remanded.