E. A. Little and another v. George Birdwell and others, 27 Tex. 688

Moore, J. We are not called upon in this case to decide,, whether a party can, by a testamentary disposition of his property,, prevent an appropriation of it being made by the chief justice as an allowance to the widow and children for a year’s support, and in lieu of such property as is exempt from execution or forced sale by the constitution.

Nor is it necessary for us to enquire whether the widow and children are forced to elect between such provision as may be made for them by the will, and the allowance for a year’s support, and in lieu of property exempt from forced sale, which, by articles 752 and 753 of O. & W. Digest, the chief justice is directed to make for them at the first term of the court after the grant of letters testamentary, and after an inventory has been returned.

Although the statute directs that the property exempt from sale under execution, shall, at the first term of the County Court after the return of the inventory and list of claims, be set apart for the use and benefit of the widow and children, yet it is also provided, if the estate is solvent, that this property shall be included in the partition and distribution of .the estate.

It must follow, therefore, although the widow and children do not forfeit or lose their right to an allowance in lieu of the property not subject to forced sale, from them neglect to apply, or the failure of the chief justice to make the order for the allowance at the time directed in the statute, if the estate is solvent, as is the case here, that it is too late to make such application where the estate is ready for partition and distribution among the heirs. The order would then be altogether useless and nugatory.

The time during which the statute intends to secure this property to the widow and children has then passed, and a subsequent right to it, by virtue of such allowance, is expressly repudiated. Nor does the application for the allowance for a year’s support for the widow and children of the testator, stand upon any better ground. Provision for this purpose was made by the will itself.

And the record discloses the fact that the widow of the testator, who is the appellant in this case, caused the will to be probated; and that she held all of the property of the testator under it until her title failed, by reason of the limitation under which she held it. She had then received and enjoyed, by the provisions of the will, the allowance for a year’s support, for which she is now seeking an order from the court.

If it is not too late for the widow to make this application after the expiration of the year for which it was intended to furnish her the means of support, without at least some reasonable explanation for the delay, it cannot for a moment be supposed, that she can, after having enjoyed a bequest for this very purpose under the will, have another allowance set apart to her under the statute. Such an assumption would contradict the express provision of the statute, which limits the right to this allowance to cases where the widow and children have not separate property adequate for their support.

A party cannot take under a, will, and also assert or claim rights contradictory to, or in conflict with it. (2 Vesey, Jr., 696; 2 Sch. & Lef., 449 ; St. Eq. Jur., sec. 1075, et seq.) The questions arising under the remaining assignments of error, are not presented in a manner to require any consideration at our hands. The rulings of which appellants complain, are believed "to be in accordance with the settled and universal practice of all the courts of the State, from the very organization of the government.

The entry of the judgment in connection with the record, leaves no doubt as to the parties in whose favor it was rendered. This we think was sufficient. The appeal bond was given for the purpose of binding the parties to it, among other things, for the cost to be incurred by the appeal. The sureties made themselves, by joining in the execution of the bond, parties to the record, for the purposes of a judgment for costs. All parties interested in the «estate may be affected by the appeal, as well as those who are immediate parties to the proceeding in which the appeal was prosecuted.

For this reason the statute directs the bond to be given to the chief justice. The real purpose of the bond, so far as it operates as a security for costs, is for the protection of the officers of ■ court, and we do not think it was the intention of the legislature, or has been the practice of the courts, to require them to bring suits in the name of the chief justice to collect their costs. A practical construction has been given to the law upon the subject, which should only be changed by the legislature, if it is thought tó be erroneous.

Appellants’ counsel, however, has neither cited authorities, nor suggested reasons, that lead us to the conclusion that the judgment is erroneous, and it is therefore affirmed. Judgment affirmed.