
    EUBANK & CO. v. S. D. LANDRAM.
    SUPREME COURT,
    AUSTIN TERM, 1883.
    
      Homestead — Surviving Husband — Eights of. — The husband is entitled to homestead exemption after the death of his wife and only • child.
    Landram brought this injunction suit against appellants March 12, 1879, to enjoin the sale at execution of what he .Maimed as his homestead, alleging in substance that he intermarried with Blanch Aycock, the 8th day of November, 1877, and afterwards purchased the land in controversy with •her separate property, money that she inherited from her •father’s os’ate. That they moved upon, improved and occupied ihe land as-their homestead until üecernber 25, 1878, when his wife died, leaving appellee and an infant child, and •minor brother and sister of said Blanche constituting the family.. That a short time thereafter his infant child” also .died, and that he has,continued, all the sime continued and •still occupies the laud as his homes1.ead, with the said minor brother and sister ef his deceased wife, living with him as members of his family. That Eubanks <é Co'., recovered a judgment against appellants in jus ico court February 18, 1879, and that.execution had .issued upon that judgment and levied upon the land, and this suit was to preven-' the .sale, 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.
    The case ivas tried before the court, motion to dissolve the injunction was overruled, and judgment was rendered perpetuating the injunction and for costs, etc., from which .this appeal was taken. The assigned errors relied on and not waived are:
    1. The court erred in holding that J. D. Landram, a widower ivas entitled to homestead exemption after the ■ death of his wife and only child.
    
      %. The.court erred in decreeing the property in controvcrsy the homestead of plaintiff, ho having acquired title to the property after the death of his widow and child.
   Opinion by

Watts, J.

Neither of the propositions asserted by appellants can bo maintained as sound. The constitution provides that the-homestead “shall not be portioned among the heirs of the deceased during the lifetime 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 .he 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 docs not depend upon the title being in die survivor at the time of the death of the other marital pariner. Whether the title to the property be vested in the' community, or be the sepárale property of ibe deceased or the survivor, is imma!erial, so long as (he. survivor continues to occupy the homestead as such, it is neither subject to execution, nor parti don among the heirs of the deceased marital pariner. In this case it is not denied but that appellee has continued to occupy the land as his homestead ever since the death of liis 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 ue occupies the properly, whether wbh 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 hi the properly 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 benciitted byr them. The authorities cited by appellaiii have no application to the-questions involved in this case.

We conclude liiat the judgment ought to be affirmed.

Adopted.  