43 Tex. 121 | Tex. | 1875
Alexander Johnson, sr., died in 1863, leaving his wife, Martha, and their only child, Alex. Johnson, surviving. His estate consisted of
It is claimed by appellant that inasmuch as the father’s estate was insolvent, the 45th section of the probate law of 1848 (Paschal’s Dig., art. 1154) had the effect of vesting in his child, the plaintiff, an absolute estate in one-half of the homestead not subject to sale by the survivor of the community. The case of Green v. Crow, cited by appellant, 17 Tex., 188, is to the effect that, under the section referred to, the right of the widow and children to such exempt property is absolute as against creditors. But there is believed to be nothing in that law or that decision justifying the conclusion that the child in such a case, as against the surviving widow, takes any other estate than that given him by the general laws of descent and distribution. Where the homestead was thé separate property of the survivor, the right of the survivor to sell and convey it is well settled. (Brewer v. Wall, 23 Tex., 589; Tadlock v. Eccles, 20 Tex., 782.)
The children have no interest in the homestead as such, as against the surviving parent, by virtue of the homestead
It is not shown that there was error in adjudging the entire costs against the next friend, who came forward of his own accord, and assumed the liabilities attaching to that character.
The judgment is affirmed.
Affirmed.