Burns v. Jones , 37 Tex. 50 ( 1873 )

Walker, J.

The first assignment of error is not well taken. Service by any constable residing within the limits of the county, though he be elected or appointed to serve within a city, town, or village, is a sufficient compliance with the statute. But we not notice the assignments in their order.

The second assignment covers the ground on which the case must be decided. The plea in bar was a good defense to the action. At the death of S. H. Doxey and wife, who appear to have died almost contemporaneously, the character and attributes of a homestead ceased to attach to the property in question, as no family remained to occupy it as such. The charge of the court did not properly give the law to the jury. The plaintiffs, as heirs of Doxey and wife, not being members of the family at the time of their death, but married and having homes of their own, or the grandchildren not living with their grandparents, could not claim the property, as heirs, to the exclusion of creditors.

It is. very true the Constitution prohibits the sale of the homestead of the family ; but when no unmarried or minor children remained, no wards, no grandchildren, or apprentices, nor indeed any member of the family of S. H. Doxey, this property . was no longer the homestead of a family.

The case of Hoffman v. Neuhaus, 30 Texas, 633, sufficiently

explains the doctrine of this court, as showing what will constitute a family to take and hold the homestead. In a previous case, Sossaman v. Powell, 21 Texas, 664, Chief Justice Hemphill marked out the line pursued in Hoffman v. Neuhaus; and it is not improper here to remark, in honor of that great jurist, that in all the adjudications of the court over which he so ably presided, there appears to have been the most delicate and scrupulous regard of the homestead right observed. But when there is no family to protect in this right, the Constitution and the law governing homesteads cease to operate. Chief Justice Hemphill says: “ If a homestead, with its exemptions, was “ necessary during the life of the husband, the necessity eon- “ tinues and becomes more potent after his death, for the pro- “ tection of the wife and family. .The widow, becoming the “ head of the family, is as much entitled to a homestead as her “husband, and the one-half of the community lands which “ formed the homestead during the marriage becomes hers ab- “ solutely, independent of any administration, or other act what- “ ever, 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.”

To this doctrine we heartily subscribe. But in the case at bar, there was no widow, no surviving husband, no minor child, nor any other person who had ever belonged to the family of S. H. Doxey, left after his death and that of his wife, in whom the homestead right could vest. We will not say that orphaned grandchildren, living with their grandparents at the time of their decease, may not be entitled to take a homestead right; but this right could not belong to adult married children, nor even to orphaned grandchildren whose home was not with their grandparents previous to and at the time of their death.

We entertain no doubt but that the property in suit became assets in the hands of the administrator, and was properly subjected to the rights of creditors.

The judgment of the District Court must therefore be reversed and dismissed.

Reversed and dismissed.