Citation Numbers： 162 S.W. 955, 1913 Tex. App. LEXIS 493
Judges： Jenkins
Filed Date： 11/19/1913
Status： Precedential
Modified Date： 10/19/2024
In so far as tbe proper disposition of this case is concerned, we deem it necessary to consider only tbe following facts: Mrs. R. J. Riley and her deceased husband, A. M. McCallister, were tbe owners of about 700 acres of land, community property, in two tracts. Tbe homestead of Mrs. Riley and her deceased husband was situated upon one of these tracts, and she continues to occupy tbe same as a homestead. Suit was brought by the children of Mrs. Riley and her deceased husband for partition of said estate. Commissioners were appointed, and they set apart to Mrs. Riley as her homestead 200 acres of land as claimed by her, and valued tbe same at $10,000. This was not taken into consideration in tbe partition. Tbe remaining lands were valued at $6,400, one half of wbicb was set aside to Mrs. Riley in fee simple, and tbe other half to tbe children.
1. It is tbe contention of appellants, first, that Mrs. Riley did not have tbe right to select her homestead in an irregular shape to tbe detriment of tbe children, who inherited one-balf of tbe community estate. We overrule this assignment, Mrs. Riley bad tbe right to select her homestead, not to exceed 200 acres, in any shape that she saw proper, provided only that she should select such lands as bad been impressed with tbe homestead character and lands contiguous thereto. Shippey v. Hough, 19 Tex. Civ. App. 596, 47 S. W. 672.
2. We sustain appellants’ assignment that tbe court erred in approving tbe report of tbe commissioners, for tbe reason that tbe same did not take into consideration tbe homestead in partitioning' tbe estate. It was tbe duty of tbe court to set aside tbe home
“We see no reason why the homestead may not enter into the partition of the estate and be disposed of in any manner which does not take away the right conferred ⅜ * * to occupy it. This right to occupy is the sole right which it was the purpose to protect by the provision of the Constitution quoted; and the partition of an entire estate, of which a homestead may be a part, which does not take away this right, neither contravenes the spirit nor letter of that instrument.”
“The Constitution, after providing for the descent and distribution of property occupied as homestead, declares that ‘It shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted under the order of the proper court having the jurisdiction, to use or occupy it.’ Const, art. 16, § 52. * ⅜ ⅜ The purpose of the constitutional provision quoted evidently was to secure to the surviving wife or husband the right to use the homestead so long as he or she might elect to do so, and to protect minor children in a home so long as, in the opinion of the court having jurisdiction over the property and minors, it was necessary that they should use the homestead. It was. the light of such persons to occupy the homestead which it was the purpose of the Constitution to protect, and it therefore forbids the partition of the homestead so long as given conditions continue. The word ‘partition’ is evidently used in the Constitution in its legal sense, and means the act or proceeding through which two or more co-owners cause the thing to be partitioned to be divided into as many shares as there are owners, and which vests in each of such persons a specific part, with the right to possess it ■ freed from a like right of any other persons who before partition had an equal right to possess. ⅜ * ⅜ It is a partition of the homestead that is forbidden, but it does not follow from this that in the partition of an estate the homestead may not enter into the partition, if that may be made without defeating the right of the surviving wife, husband, or children to occupy the homestead as under the Constitution they are entitled to occupy.” 72 Tex. pages 231, 232, 10 S. W. 105, 106. See, also, Higgins v. Higgins, 129 S. W. 162.
3. We hold that Mrs. Riley had the right to select her homestead in the manner in which she did, and that she may have the exclusive use and possession of the same so long as she occupies it as a homestead, and that said use and occupation may be continued in her children under the order of the proper court, as provided by the Constitution. But this selection of the homestead need not necessarily be taken into consideration in partitioning the estate; that is to say, the title to the homestead, or portions thereof, may be vested by the partition in the heirs of Mrs. Riley’s deceased husband, but such title would not permit them to interfere with her proper use and occupation of the homestead. And in placing the value upon that portion of the homestead which is allotted in fee to other heirs, if such be the case, of course the commissioners will take into consideration that it is burdened with the homestead rights of Mrs. Riley and her children. If in the partition the homestead or a part thereof is set aside in fee to Mrs. Riley, the same should-be charged to her at its value, and if the homestead or such part thereof as shall be set aside to Mrs. Riley in fee is equal to her share of the community estate, the remainder of the estate, including the excess- of the homestead not set aside to Mrs. Riley, should be partitioned among the children of her deceased husband; the part ,of the homestead so partitioned among the children being, however, subject to the use and occupancy of Mrs. Riley and of her minor children, as hereinbefore stated.
For the reasons herein indicated, the judgment of the trial court is reversed, and the cause remanded, with instructions to partition said estate as indicated in this opinion.
Reversed and remanded, with instructions.