W. A. Horn v. William Arnold and N. Anderson, adm'r, 52 Tex. 161

Moore, Chief Justice. “Whatever may have been the views entertained by individual members of the court upon the subject as an original question, it must now be held to be definitely settled that the widow and children (or either, as the case may be) to whom a homestead was set apart under the probate law of 1848, out of an insolvent estate, took an estate in fee, freed and discharged from the liens of creditors, unless it be for purchase-money, or for work and labor or for materials furnished in constructing or erecting improvements upon the property. (Reeves v. Petty, 44 Tex., 249; Green v.

Crow, 17 Tex., 188.) As the rights of creditors are superior to heirs not entitled to this exemption, it is a necessary and obvious deduction from these decisions, that the widow and children in whose favor the allowance is made take a like estate in the property set apart to them, free from any claim of inheritance by other children or heirs not beneficiaries of or entitled to share in the allowance.

It is claimed that as the statute directs the property exempt by the Constitution from execution or forced sale to be set apart for “ the use and benefit of widows and children, if there be either, or any,” the adult children take the same interest or estate in the exempted property as minors. In our opinion, such construction of the statute is erroneous and untenable. It would be to lose sight of the object and purpose of this provision to give effect to the literal import of a single- word.

If the estate is solvent, the exempted property which may have been set apart to the widow and children, with the exception of one year’s supply of provisions, shall be taken into account in the final partition and distribution of the estate; but until the final settlement of the estate, the adult children who were not constituents of the family at the death of the father cannot participate in the use and enjoyment of the exempted property without defeating the. object and purpose for which it is set apart.

This purpose is, evidently, to give a home to the constituents of the family remaining after the death of the husband and father while the estate is being settled, the possession and enjoyment of which cannot be disturbed or interrupted by the administrator, the creditors, or the heii’s. [Opinion delivered November 11, 1879.] It is to prevent the disruption of the family, to secure a shelter and an asylum for the widow and children who have not left the family hearth-stone until the estate can be partitioned, which object would be defeated if they may be forced to divide or share it with other children who have previously separated themselves from the family, and, perhaps, have formed other and uncongenial ties.

As the parties to be benefited by the exemption are the same, whether the estate is solvent or insolvent, the difference in the nature and character of the title which they take cannot enlarge or limit the number or character of the beneficiaries in the one case or the other. Bor does the injustice or the inequality that may result among children in the distribution of this character of property, address itself to our consideration. The views which wre have here expressed are believed sufficient to lead to the proper determination of this controversy on another trial.

It is unnecessary, therefore, to consider the other assignments of error. The judgment is reversed and the cause remanded. Beversed and remanded.