
    Eubank & Co. et al. v. John D. Landram.
    (Case No. 4084.)
    1. Homestead. — The constitution protects the surviving husband or wife in his or her right to the occupancy and enjoyment of the homestead, whether as against the heirs of the deceased seeking partition, or the creditors of the survivor, so long as such survivor occupies it as such.' It is immaterial whether the title to the homestead property was vested in the deceased or the survivor, or was community property; in either case it is protected against forced sale or partition while occupied as a home, whether with or without others to constitute a family.
    Appeal from Collin. Tried below before the H.on. Joseph Bledsoe.
    Suit by injunction against appellants, to enjoin the sale at execution of property claimed as homestead, alleging in substance that plaintiff intermarried with Blanche Aycock the 8th day of November, 1877, and afterward purchased the land in controversy with her separate property, money that she inherited from her father’s estate; that they then moved upon, improved and occupied the land as their homestead until December 25,1878, when his wife died, leaving appellee and an infant child, and minor brother and sister of the deceased Blanche, constituting the family; that a short time, thereafter his infant chdd also died, and that he had continued all the time to occupy the land' as his homestead, with the minor brother and sister of his deceased wife living with him as members of his family; that Eubanks & Co. recovered a judgment against appellant in a justice court February 18, 1879; that execution had issued upon that judgment, and was levied upon -the land.- This suit was to enjoin the sále, etc.
    . Appellants answered by general denial, and specially that-the land was not the homestead of appellee, and was not protected from forced sale, etc.
    Motion to dissolve the injunction overruled, and judgment rendered perpetuating the injunction. The errors assigned were:
    1st. The court erred in holding that J. D. Landram, a widower, was entitled to homestead exemptions after the death of his wife and only child.
    2d. The court erred in decreeing the property in controversy the-, homestead of plaintiff, he having acquired title to the property after the death of his wife and child.
    
      W. M. Abernathy and J. M. Pearson, for appellants,
    cited Howard v. Marshall, 48 Tex., 471 et seq.; Whitehead v. Nicholson, id., 517 et seq.; Eoco v. Green, 50 Tex., 483 et seq.; Brewer v. Wall, 23 Téx., 585 et seq.; Wright v. Hays, 34 Tex., 253 et seq.
    
    
      No briefs on file for appellee.
   Watts, J. Com. App.—

Neither of the propositions asserted by appellants can be maintained as sound. The constitution provides that the homestead “ shall not be partitioned among the heirs of the deceased during the life-time of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead.” In other words, the constitution protects the surviving husband or wife in their right to the homestead, whether as against- the heirs of the deceased or the creditors of the survivor, so long as.such survivor occupies the homestead as such. And this exemption does not depend upon the title being in the survivor at the time of the death of the other marital partner. Whether the title to the property be vested in the community, or be the separate property of the deceased or the survivor, is immaterial; so long as the survivor continues to occupy the homestead as such it is neither subject to execution norpartition among the heirs of the deceased marital partner. In this case it is not denied bub that the appellee has continued to occupy the land as his homestead ever since the death of his wife. As to who lives with him upon the property, as part of the family, is a matter of no consequence soever; so long as he occupies the property, whether with or without other relatives, being with him, it is-exempt from forced sale.

Upon the death of the wife, as a matter of inheritance a life estate to a one-third interest in the property vested in appellee and all the remaining title vested in the infant, and upon the death of the infant the title to the entire tract was vested in appellee by inheritance. The fact that descent was in this way cast upon appellee would not disrobe the property of its homestead character and thereby subject it to forced sale. It can never be justly charged against the statutes of descent and distribution that their operation is to work a forfeiture of constitutional rights as against those who are intended to be benefited by them. The authorities cited by appellant have no application to the questions involved in this case.

Affirmed.

[Opinion delivered April 18, 1883.]  