
    F. Singletary et al. v. J. R. Hill.
    1. Rule in Shelley’s case.—A deed conveying land to M. D. and the heirs of her body * * to have and to hold unto her, the said M. D., and her said heirs forever, conveyed to her the absolute estate.
    2. Sale of homestead for partition.—Under the probate law of 1848 a sale of the homestead ordered and made upon the report of commissioners that partition was impracticable passed the title.
    3. Same.—The surviving husband could, under the said probate law, take the land, accounting to the other distributees for then- part of the value of the land so sold for partition, in the absence of fraud.
    Appeal from Panola. Tried below before the Hon. George Lane.
    The facts are stated in the opinion.
    
      Martin Casey, for appellants.
    
      J. G. Kazlewood, for appellee,
    cited Peters v. Caton, 6 Tex., 559; Foster v. Wells, 4 Tex., 101; Merle v. Andrews, 4 Tex., 211; Poor v. Boyce, 12 Tex., 440; Shannon v. Taylor, 16 Tex., 419; Giddings v. Steele, 28 Tex., 732; Berry v. Young, 15 Tex., 369; Howard v. North, 5 Tex., 316; Spann v. Sterns, 18 Tex., 563; Jones v. Shaw, 15 Tex., 578.
   Gould, Associate Justice.

The plaintiffs in error brought trespass to try title to two hundred acres of land, being the same land conveyed on September 3,1856, by J. B. Youngblood to Ms daughter Mary Dillard, the mother of the plaintiffs. The deed recites a consideration of natural love and affection, and of one hundred dollars, and conveys the land “ unto the said Mary Dillard and the heirs of her body”—“to have and to hold unto her, the said Mary Dillard, and her said heirs forever.” Under this conveyance it is clear that Mary Dillard took an absolute estate, and not merely an estate for life. (Hancock v. Butler, 21 Tex., 807, and authorities there cited; also Hawkins v. Lee, 22 Tex., 547; O’Brien v. Hilburn, 22 Tex., 623.) The claim of the plaintiffs must be supported, if at all, in their right as heirs of their deceased mother, and not as purchasers under this deed.

The defendant claimed title through G-. W. Dillard, husband of Mary Dillard, who administered on her estate and inventoried the land in controversy, stating (and the record contains evidence tending to support the claim) that about seventy-five acres of it was community property, and the balance the wife’s separate estate. Subsequently, on the application of said Gr. W. Dillard, the County Court ordered a partition of the estate, consisting only of this tract of land, between him and the other distributees, the plaintiffs in this suit. The court having appointed a guardian ad liiem for the minors and fixed the respective shares of the distributees, and the commissioners to partition having reported that partition was impracticable, Gr. W. Dillard was allowed to take the land at its appraised value, eight hundred dollars coin. (Paschal’s Dig., art. 1360.) At a subsequent term of the court a decree was made vesting the title in G. W. Dillard, the decree reciting that he had produced satisfactory evidence that he had paid to each of the distributees their proper share of the eight hundred dollars. Shortly afterwards, in consideration of eight hundred dollars, he conveyed the land to Joseph M. Haskins, and on February 7, 1870, Haskins conveys to defendant Hill the consideration recited, being eighteen hundred dollars.

These proceedings of the County Court, and the conveyances thereunder, were specially pleaded by defendant, and it was also alleged and proved that plaintiffs Singletary and wife were parties to the partition, and had received and receipted for their share of the eight hundred dollars ; also that G. W. Dillard after the partition, but before the title was decreed to him, had qualified as guardian of the other plaintiffs, and had inventoried their share of the proceeds of the land. There was no pleading on the part of the plaintiffs impeaching the validity of the proceedings in the County Court on the ground of fraud or otherwise. By instructions, asked and refused, it was claimed that the two hundred acres admitted to have been the homestead of deceased and her husband u was not subject to administration or forced sale, and the proceeding of the probate court of Panola county attempting to alien the same is void for want of jurisdiction in said court.” A charge was also asked to the effect that the jury should disregard the action of the probate or County Court if they found that it was procured by Dillard with the purpose of depriving plaintiffs of their title. As Gr. W. Dillard was not a party to the suit, and as no issue of fraud was made, and there was no prayer to have the proceeding of the County Court vacated on that ground, this latter charge was correctly refused. (See Ayres v. Duprey, 27 Tex., 598.) The proposition that the partition had at the application of the surviving husband was equivalent to a forced sale of the homestead is untenable. The administration was under the probate law of 1848, which,in cases of solvent estates, contemplated the ultimate distribution and partition of the homestead and other exempt property. (Paschal’s Dig., art. 1305; O’Docherty v. McGloin, 25 Tex., 72.)

The assignment of errors presents no other question, nor does the brief of counsel for plaintiffs in error suggest any other grounds, upon which the proceedings resulting in a decree of title to G. W. Dillard can be treated as void. Under these circumstances we do not feel called on to scrutinize these proceedings, perhaps imperfectly presented in the record, with the view of ascertaining whether any other objections might be taken to their validity.

The verdict and judgment were in favor of defendant; and because we find no error in the action of the District Court, the judgment is affirmed.

Affirmed.  