21 Tex. 664 | Tex. | 1858
This case does not come within the rule requiring the administrator to enforce the rights of the succession and excluding the heirs from bringing suit unless under special circumstances and equities. (Patton, adm’r v. Gre
These lands did not constitute a fund from which the debts contracted in the life-time of the husband were expected to be paid. ' If a homestead with its exemptions was necessary during the life of the husband, the necessity continues and becomes more potent after his death for the protection of the wife and family. The widow becoming the head of the family is as much entitled to a homestead as was her husband, and the one-half of the community lands which formed the homestead during marriage becomes her’s absolutely independent of any administration or other act whatever for homestead purposes, and if there were no Statute equity would allow her to retain possession of the other half for the benefit of the minor children of the marriage as long as they remained in minority and a family, with the widow at the head of such family.
If these lands had been even the separate property of the husband, they could not have been taken for the payment of his debts. The Statute (Sec. 45, Art. 1154) requires the Chief Justice, at the next Court after the return of an inventory and list of claims, to set such property apart for the benefit of the.widow and children, to be theirs absolutely if the estate
We are of opinion that the suit was properly brought by the wife and minor children to yemove the cloud from their title.
But if this were doubtful under the law as it formerly existed, that doubt has been removed by the Act of 26th August, 1856, supplementary to the Act of -March 18th, 1848, “ defining the marital rights of parties.”
That Act declares in effect that it shall not be necessary for the surviving husband or wife to administer upon the community property, but he or she shall have the exclusive management, control and disposition of the same after the death of the other partner in matrimony, &c., and that he or she may sue or be sued with respect to the same. The husband departed this life nearly two months before the passage of this law, but there is not much probability of administration having been taken out prior to the passage of the Act, and if so, there would have been no necessity for administration, for by
The question as to whether this homestead must be confined to either the town or the country, or whether there may not be cases in which the cabin or house may be within the corporate limits, but the whole of the lots or lands of the homestead except that covered by the building without, and yet constitute a homestead valid in law, does not arise under the pleadings. The petition avers in one place that but a small portion of one of the tracts is within, and in others, alleges that they are all without the corporation. It does not appear whether the buildings are within or without. If without, the homestead would clearly cover the lands in controversy. If within, a question will be raised which must then be decided but which does not require an expression as the case is now presented.
There being error in the judgment ordered that the same be reversed and the cause remanded for a new trial.
Reversed and remanded.