Caroline W. Sears v. Robert Sears et al., 45 Tex. 557

Moore, Associate Justice. If appellant, without any just and reasonable cause, voluntarily abandoned her husband, and, without any intention of returning, continued to live separate and apart from him until his death, it is well settled by the former decisions of this court that she cannot claim the benefit of the homestead law. (Trawick v. Harris, 8 Tex., 312; Earle v.

Earle, 9 Tex., 630.) It is only when there is some surviving constituent of the family that property exempt from forced sale forms no part of the estate of a deceased person, upon which administration can he had. (Paschal’s Dig., art. 5487.) If no constituent of the family of the decedent survives him, the homestead is a part of the estate subject to administration for the payment of debts or to distribution to heirs or devisees, just as any other property of which the owner dies seized and possessed.

However liberal may be the construction which should be given the homestead laws, it cannot be supposed that they were intended for the benefit and protection of a party who has without excuse or justification broken up and destroyed •the very relation upon which they are founded, and for the security and well being of which they are intended. If, as says Mr. J.

Lipscomb, “thewife has wantonly destroyed the harmony of the matrimonial relation and voluntarily withdraw'n from the narrow hut sacred precincts of that home in which she was protected by the law, * * * and is no longer found a priestess ministering at the household altars,” she is estopped from claiming the immunities conferred upon those recognizing and fulfilling these sacred duties. The fact of appellant’s separation .from her husband was not controverted. Whether she did so with or without cause was a question for the jury.

And as the testimony, to view it in the most favorable light for appellant, is conflicting, ^ve must regard their verdict upon it as decisive. The only question of importance presented in the record is that raised by the ruling of the court sustaining appellee’s objections to the questions propounded by her counsel to appellant. But although from the bill of exceptions the objection seems to have been sustained, it appears from the statement of facts that she in fact testified in reference to the very matters, in regard to which these questions were calculated to elicit her testimony.

Having gotten the benefit of the evidence, the ruling of the court sustaining the objections to the questions is immaterial. If we admit that the ruling was erroneous, as it worked her no injury, she has no just cause of complaint. The bill of exceptions also fails to state the ground of objection to the questions, as has been frequently held it should. If this had been done, the apparent contradiction between the statement of facts and the bill of exceptions might be dissipated.

The verdict of the jury on the issues upon which they found obviated the necessity of a direct finding upon the other issues submitted to them by the court. The verdict decides the essential questions upon which the merits of appellant’s case depended, and warrants and supports the judgment. This is all that it was necessary for the jury to do. The other errors presented by the assignment are too general and indefinite to merit discussion. The judgment is affirmed. Affirmed.