Williams v. Jenkins

25 Tex. 279 | Tex. | 1860

Roberts, J.

The constitution provides that “ the legislature shall have power to protect, by law, from forced sale a certain portion of the property of all heads of families. The homestead of a family, not to exceed two hundred acres of land, (not included in a town or city,) or town or city lot or lots, in value not to exceed two thousand dollars, shall not be subject to forced sale for any debts hereafter contracted, nor shall the owner, if a married man, be at liberty to alienate the same, unless by the consent of the wife, in such manner as the legislature may hereafter point out.” (See. 22, Art. 7, Con. of State. O. & W. Dig., 24.)

By the act concerning the estates of deceased persons it is provided that “ at the first term of the court after an inventory and list of claims have been returned, it shall be the duty of the chief justice to set apart for the use and benefit of the widow and children, if there be either or any, of the deceased, all such property as may be exempted from execution or forced sale by the constitution or laws of the State, with the exception of any exemption of one year’s supply of provisions; and in case there should be among the effects of the deceased all or any of the specific articles so exempted it shall be the duty of the chief justice to make an allowance in lieu thereof to the widow and children, or such of them as there be, which allowance shall be paid by the executor or administrator, either in money out of the first funds of the estate that may come to his hand, or in any property of the deceased that such widow or children may choose to take at the appraisement, or a part thereof in both, as they may select,” &c. (Part of Art. 753, O. & W. Dig., 177.)

The order made by the County Court under these provisions, for the benefit of the widow and children in this case, not having been complained of by the creditors of the estate, but being brought into the District Court upon appeal by the widow, the correctness of the order of the County Court is not called in question by appellants in this court, the creditors.

.And, therefore, the question in the case is whether or not the District Court erred in making an allowance more favorable to the widow and children than that contained in the order of the County Court.

The decree of the District Court is based upon a construction of the section of the constitution above quoted, which makes the words “ lot or lots ” relate to the land contained in them exclusive of the improvements on them in estimating the value of the homestead.

A majority of the court do not believe this is the correct construction.

The leading objects of this provision of the constitution are: first, to exempt certain property from forced sale; second, to fix a limit for the amount of the property exempted as a homestead, up to which it shall be exempt; and third, to protect the wife from its disposition without her consent.

In fixing the limit up to which the homestead shall and must be allowed, and which the legislature has no power to diminish,, two distinct standards were adopted, one for the country and another for the towns and cities. The former was fixed by quantity in acres, and the latter by value in money, ($2000.)

There is no reference made to improvements in either case. In valuing a lot or lots that constitute a homestead, the improvements would naturally be understood to be included in the valuation, unless expressly excluded. The term lot, in common use,, means a piece or parcel of land, and a conveyance of it would carry with it any improvements that might be erected upon it, We think there is nothing expressed, and nothing in the nature and objects of the provision to require a different meaning to be attached to the words “ lot or lots ” from that which they ordinarily and naturally bear in common use in reference to real estate.

Judgment of the District Court is reversed and appeal of the widow dismissed.

Reversed and dismissed.