Terry v. Terry , 39 Tex. 310 ( 1873 )

Walker, J.

The appellant filed her petition in the District Court representing herself as the surviving 'widow of Constant Terry.

She avers that she and her minor daughter are constituents of the family of said Constant; that her husband -died leaving no homestead, nor did he leave the specific personal property exempt by law from forced sale, and she prays for an order to sell so much of the personal property of her husband’s estate as would equal in value ;a homestead, the personal property exempt, and a provision for one year.

The averments of the petition were not contested.

The court found them true, but denied her the right to the value of the homestead, and allowed her $600 in lieu ■of the property not possessed by the deceased at the time ■of his death, and authorized her to sell property to the ¡amount of $600.

From this decree of the court the ease is brought, here •on appeal.

, By reference to Articles 5486, 5487, 6994 and 6834, Pas-chal’s Digest, we arrive at what we believe to be the law ■of this case. Article 5487 reads thus: “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 where a constituent of the family survives.”

Articles 6834 and 6994 are both acts of the Legislature ■passed on .the 45th day of August, 1870, and took effect from and. after :their passage, if indeed they are to be regarded as different acts.

But we think lit safe to regard them as part and parcel <of the same.act. • .

We.are then deft .to the .conclusion that the appellant is entitled to an allowance in lieu of a homestead, and also-in lieu of such personal property exempt by law from forced sale as her husband did not leave her at the time' of his death; and that under Article 5487 so much of' the property as is required to make good these allowances is not otherwise subject to administration.

But this question does not present itself without some-embarrassment.

The Legislature has not enacted what sum shall be al- • lowed in lieu of the homestead, or what valuation shall be fixed upon the chattel property reserved from forced sale; 'and we do not feel authorized to do more than suggest what might be a safe rule for the District Courts to follow in making these allowances.

In no case should the allowance for a homestead exceed five thousand dollars.

We are of opinion that in estimating the amount to be allowed, it would be competent for the court to ascertain, through witnesses, what would be the average value of homesteads in the town, city, or neighborhood where the deceased died, owned by persons in like conditions and circumstances ; and also what would be the average value of the personal property, to be estimated at the place where the deceased last resided.

With these instructions, the judgment is reversed and the cause remanded.

Beversed and remanded.