M. E. and A. G. Roco v. M. M. Green, Adm'r, 50 Tex. 483

Bonner, Associate Justice. This is a suit by appellant, M. E. Eoco, joined by her husband, A. G. Eoco, as plaintiffs, against M. M. Green, administrator of the estate of Lucy A. Green, deceased, to have stricken from his inventory the homestead of which she died seized and possessed. The petition alleges, substantially, that the plaintiff M. E. Eoco, being a widow, with several minor children, residing in the county of Grimes, at the request of her mother, the said Lucy A.

Green, who was an aged widow and unable to work, removed to her homestead in Hopkins county; that she and her children lived with her mother as members o.f her family, and so continued to the date of her death, October 4, 1877, the other children having left long before; that since Mrs. Green’s death the plaintiff M. E. Eoco, then M. E. Brown, had married A. G. Eoco; that she, as an alleged constituent of the family of Mrs.

Green, invokes the benefit of the probate act of 1870, which provides: “The property reserved from forced sale by the Constitution and laws of the State, or its value if there be no such property, does not form any part of the estate of a deceased person when a constituent of the family survives.” (Paschal’s Dig., art. 5487.) The general exception of the defendant was sustained, the suit of the plaintiffs dismissed, and from this judgment they appealed.

It is said by a learned judge that “the relation of husband and wife, parent and child, is the unit of civilization, and the State has thought to encourage that relation by protecting it from absolute want, arising from the vicissitudes of life.” To Texas is given the honor of being the pioneer in that field of humane legislation which provides for homestead exemption, the first law on this subject having been passed, it is said, by the late Eepublic, on January 26, 1839. (Pas-dial’s Dig., art. 3798.) The wisdom, of such legislation, in the encouragement of immigration, “virtue, industry, and love of country,” has been so practically demonstrated that it has become a part of the general policy of the countiy. and now no less than twenty-nine States of the Union have similar laws. (Preface to Thompson on Homestead and Exemptions.) It will yet take time and experience to determine between the excessive demands of the overzealous advocates of the system, which have impaired individual credit, and that proper medium which respects the just rights of creditors.

As may be expected in all new branches of jurisprudence, these laws have been the subject of much discussion and many decisions by the courts of the several States and of the United States. Among other questions discussed is the one presented in this case: What constitutes a family ? The decisions on this subject have been conflicting, varying with the different stand-points from which they have been viewed. In some of the States the question has received a practical solution by express legislative enactments. The necessity of such a solution has long been felt by our courts. As suggested in Whitehead v.

Nickelson, 48 Tex., 530, the task of attempting to lay down fixed and definite rules by which it can be determined in every instance what character of persons living together, under the peculiar circumstances of each case, will constitute a family, within the meaning of the Constitution, evidently cannot be free from difficulty; and, as said in Howard v. Marshall, 48 Tex., 481, well-considered legislation on the subject of homesteads and community property is most earnestly called for.

By reason of our meagre legislation, the courts, from necessity, by liberal construction and intendment, have been forced to infringe upon that domain which more properly belongs to another department of the government, and have endeavored as best they could to decide some of the questions presented, not upon general rules founded upon known and fixed principles, which should govern all cases, but simply to determine the particular case by such rules of construction and analogy as were considered most applicable.

We have met with so much difficulty in this case that at a former term it was referred back for further argument. A mere aggregation of individuals under one common roof or within the same curtilage, although “ devoting their attention to a common object, the promotion of their mutual interests and social happiness,”—as the inmates of a boardinghouse or persons employed in the capacity of servants,—does not, of itself, constitute a family. (Whitehead v.

Nickelson, 48 Tex., 530.) Cases have been decided in which it has been held that two families can occupy the same homestead, in one of which a widowed daughter with her children resided with her aged father. (Bachman v. Crawford, 3 Humph., 213.) We deduce from the authorities the following general rules to determine when the relation of a family, as contemplated by law, exists: 1. It is one of social status, not of mere contract. 2. Legal or moral obligation on the head to support the other members. 3.

Corresponding state of dependence on the part of the other members for this support. (Thomp. on H. and E., secs. 45, 46, and authorities cited.) The later decisions of this court, in view of the objects contemplated by our Constitution and laws, and in the light of the provisions of the probate act of 1848 on this subject, (Paschal’s Dig., arts. 1304, 1305,) have had a tendency not to give too extended a scope to the term “ family.” As said in the ease of Howard v.

Marshall, 48 Tex., 478, “ The nature of the family intended is left undefined by the Constitution; but we are of opinion that the framers of that instrument had in view a family composed of husband, wife, and children, for whose protection in the enjoyment of their homestead they intended to provide.” We think that the law contemplated—as a general rule, at least—that as the older members of the family grew up and married, or moved off and left the paternal roof, the legal relation of a family as it had formerly existed ceased, and that other and new relations and families would spring up.

We do not say that the family relation, or a part of it, might not again, become reunited, or that a widowed daughter might not seek an asylum from the misfortunes of life within the home of an aged mother, under such circumstances as would make her a constituent of the family; but we are of opinion that the alleged facts of this case do not entitle the plaintiff to this privilege. The estate of which she claims a homestead is not alleged to be insolvent, and the plaintiff, since the death of Mrs. Green, is shown to have assumed by marriage a new family relation.

The common law casts upon her the duty to support her aged mother rather than upon the mother the duty to support her, and upon the plaintiff, while living, the obligation to support her own minor children, and not upon the grandmother. (1 Blackst. Comm., 454.) If we, then, apply the tests before laid down of legal or moral obligation and dependence, the plaintiff was not, in law, such a constituent of the family of Lucy A. Green as to be entitled to the relief sought.

Keither is it apparent, upon principles of equity, under the circumstances presented in the record, why she and her minor children, who had already seemingly shared largely the bounty of the deceased, should be entitled to the exclusive right to the homestead over the claims of the other children, perhaps equally urgent and meritorious. The judgment is affirmed. Judgment aeeirmed.