
    John Heathcock v. W. E. Goodrich.
    (No. 318.)
    Allowance in lieu or homestead.—Bight of surviving widow to, there being no homestead.
    Appeal from Guadalupe county. Opinion by Watts, J.
    Statement.— Thomas Goodbread died intestate December, 1872. At the time of his death he left surviving two married daughters, then living with their respective husbands; also Ms widow, Malinda Goodbread, and two minor grandchildren, Laura and Douglas Yan Dorn; the last named was living with deceased at and before his death. He left a personal estate valued at about $2,450, his separate property. He had no other property and no homestead. W. E. Goodrich was appointed and qualified as the administrator of the estate in 1873, and that, to wit, the 18th day of June, 1873, the district court, acting in matters of probate, made and entered an order setting apart to said Malinda Goodbread and said two minors for a year’s allowanee and in lieu of exempted property the sum of $2,450.
    The said married daughters, joined by their husbands, instituted this suit the 23d day of November, 1874, against the administrator, Goodrich, and Malinda Goodbread, to have said order vacated and set aside, and for partition or distribution of said estate, which consisted of notes and money, claiming as heirs of said Thomas Goodbread.
    To this the defendants answered "setting up the facts as stated above. The case was tried December 12, 1874, before the court (a jury being waived), and resulted in a judgment for defendants, which judgment is now before the court on appeal. There is no assignment of errors in the record.
   Opinion.;— The statute in force at the time the order was made, setting apart said amount to the widow and minor grandchildren as a year’s allowance and in lieu of exempted property, provided that “the property reserved from forced sale by the constitution and laws of this 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.” P. D., art. 5478.

In Mayman v. Reviere, 47 Tex., 357, it was held that under the probate act of 1870 the surviving widow was entitled to an allowance in lien of a homestead and in. lieu of such exempted personal property as the husband did not leave her at the time of his-death; and that so much of the property as was necessary to make good such allowanees was not subject to administration.

If there should be any doubt as to whether the said grandchildren were or not constituents of the family, or of their right to participate in such allowances, that Mrs, Good bread was a constituent of the family, and entitled to the allowances as made, does not admit of doubt. And if she is willing to divide the allowances with the grandchildren, certainly appellants have no right to complain.

An examination of the record does not disclose any such errors as would authorize a reversal of the judgment.

Affirmed.  