THOMAS A. PRESLEY'S heirs v. MARY E. ROBINSON et al., 1 Tex. L. R. 597

Bonner, J. Opinion by It may be inferred from the brief of counsel, but. not from the record, that the court below dismissed ibis case, for want of jurisdiction. If so, this was error» (Ellis v. Rhone, 17 Texas, 131.) In our opinion the. plaintiffs’ pleadings set out a good cause of action, and the court erred in sustaining the demurrer thereto and in dismissing the suit. This cause, of action may be considered from two standpoints : First — What were the rights of the plaintiffs on the death of their mother, Mrs, Catherine M. Presley 1 Second - What were their rights on the death of their father, Thomas A.

Presley; and were these' rights changed by the subsequent marriage of his surviving wife, now the defendant, Mrs. Mary E. Robinson ? 1. At the death of Mrs. Catherine M. Presley the community property of herself and Thomas A. Presley descended,, subject to the debts and obligations justly and legally ehargeable against the same, one-half to the plaintiffs below as her children and heirs-at-law, and the other half to Thomas A. Presley, as the surviving husband. They thereby became tenants in common. (Wright v. Hays, 10 Texas, 130; Thompson v. Gogg, 24 Texas, 582; Johnson v. Harrison, 48 Texas, 254; Tieman v.

Robson, 52 Texas, 415.) It does not become necessary to decide whether under the statute then in force the plaintiffs could have compelled a partition of the homestead after the death of their mother. That this could not be done now is expressly guaranteed by constitutional provision. (Cons. 1876, Art. 16, Sec. 52.) Such partition was !not sought, but Thomas A. Presley, as the head of the family, continued to occupy the former homestead, and under the circumstances his estate should not be held chargeable with any rent therefor. As there were no debts against tiie estate of Catherine M.

Presley, and no necessity for an administration, and no administration in fact, and as Thomas A. Presley did not qualify as surviving husband under the statute, the plaintiffs could have legally demanded a partition of the remaining lands, not the homestead, and of at least such personal property as wasnot exempt from forced sale; and if Thomas A. Presley wrongfully converted any portion of the plaintiffs’half of their property to his own use, his estate would be liable therefor, having due regard for his rights and privileges as the survivor of the community, (Lumpkin v.

Murrell, 46 Texas, 51,); or if he converted it into other property, their rights to it would attach so long as it could be clearly traced and identified. In addition to his homestead rights, Thomas A. Presley had also title to an undivided one-half of the land in controversy, and which, as above stated, made Mm a tenant in common with the plaintiffs. His subsequent marriage with the defendant, now Mrs. Eobinson, neither increased nor diminished his homestead rights, but she by that marriage also acquired certain rights.

By reason of being his wife she was during his lifetime protected in his homestead, which was the old homestead as it existed at the death of his first wife, Mrs. Catherine M. Presley, it not having been abandoned nor partition thereof claimed by the plaintiffs. Thus stood the rights of the parties at the death of Mrs. 'Catherine M. Presley, and during the lifetime of Thomas A. Presley. II. What were their rights at the death of Thomas A, Presley, and were these rights changed by the subsequent marriage of his widow, the defendant, Mary E. Robinson ? Whatever rights Thomas A.

Presley had to the old homestead, as it existed at the death of the first wife, as against the rights of the plaintiffs to a partition, were personal to Mm and did not descend to the second wife. To hold otherwise would be to permit parties to pile one homestead upon ■another to the probable exclusion of the rights of the children of the first marriage, for years, if not during their whole ■lives, and which might extend even to the children of the third and fourth generations. This would be a perversion of the homestead law from the wise and beneficent objects of its creation. If Mrs.

Robinson therefore can claim a homestead on this land at all, it must be in some other right than that which remained to Thomas A. Presley on the death of the first wife. Viewed in the most favorable light for her, the second marriage may be considered as the establishment of a new homestead ; or rather that this gave her all the rights which would have attached had a new homestead been then established. Considered apart from the first homestead right, and which „--the death of Thomas A.

Presley, although lie? could have~eslablished a new homestead on the land held by him in common with the plaintiffs, yet he could not have done this to their prejudice. (Clements vs. Lacy, 51 Texas, 165.) it would follow that lie could not have established a new homestead to the defeat of theicjight to a partition of the land, if such partition had been to their interest and they had demanded it. The most that he could have claimed, was, that, on final partition, his claim forTmprovejmiiits should have been respected, The defendant, Mrs. Robinson, as the surviving wife of Thomas A.

Presley, could not, as against the plaintiffs, claim any greater rights than he himself had, and on his death, the plaintiffs were entitled to a partition of their interest in the land derived through their mother, and this, irrespective, of the question of homestead. They are now not only entitled to this, but also, to the reasonable value of the use and occupation of their half, so long as they, after demand therefor, were deprived of their partiMoiTalitToTthe right of possession thereunder.

They were also entitled to theirlnoliKer’s' interest in the personal property or its proceeds, of the first community, or its value under the rule above stated. On the death of Thomas A. Presley, the plaintiffs, in addition to the one-half undivided interest in the land which they inherited from their mother, inherited from him also, the remaining half, subject, as to this half, to a one-third i nterest for life in the defendant~MfsTRobiuw)ii, as his surviving wife, under the statute of descents and distribution. The question arises, were the plaintiffs entitled to a partition of this half also ?

We are of opinion that as the homestead rights of defendant, Mrs. Robinson, attached to this half, during the lifetime of Thomas A. Presley, and the rights of plaintiff thereto, as his heirs, did not. attach until his death, that their rights to-a partition were subordinate to tier previously acquired homestead right; and that so long as this homestead right continues, the plaintiffs cannot legally demand a partition of so much of that, half as had been appropriated to a.homestead, although they might as to the other portion of it, if any. We are further of opinion, that this homestead right of Mrs.

Robinson, though subject at his death to- a partition with the plaintiffs, so far as to sever the interest, which they derived through their mother, was not impaired by her subsequent marriage with her co-defendant, W. S. M. Robinson» Her marriage did not prejudice the rights of the plaintiff's, as without marriage she could have claimed the homestead as stated above.

It is'not believed that her marriage should work a forfeiture of the previously existing legal rights, or that the introduction of a husband into the house of the wife,' should make it less a homestead, so long as they may continue to claim and occupy it as such. Upon this branch of the case we are of opinion that upon the death of Thomas A. Presley, the plaintiffs, as his heirs at law, were, subject to the homestead rights of his surviving wife, now Mrs.

Robinson, and subject to an administration upon his estate for the payment of the just debts and charges against it, entitled to a partition and' distribution of this estate also, both real and personal. Reversed and remanded. Rote. — -I am requested to add, that although the whole court agree upon the result reached, that my brother Stay-ton in some particulars, bases his conclusion upon a different ground from that stated in the opinion. Bonner, J.