
    Earle's Ex’ors v. Earle.
    Where the wife without good cause voluntarily abandons her husband for several years (say three or four) immediately previous to his decease, she forfeits her claim to the home* stead and widow’s allowance. (Note 113.)
    Appeal from Harris. Proceedings in this case commenced before the Probate Court of Harris county. It was by an application of the appellee, as the .widow of the appellant’s testator, to have the late homestead of her deceased husband stricken from the inventory of his estate, and for the further allowance to her of one year’s support for herself and minor child, and also such other property as is directed by the statute to be exempted from forced sale. To this application the executors of Earle made opposition, and in their answer charge, in substance, that the petitioner, Ann Earle, had, in her own wrong and of her own accord, abandoned her deceased husband, his house and bed and board, for several years, say three or four, before his death, and continued'obstinately so to abandon the said deceased and to live apart from him until his death, against his wishes and entreaties, failing and refusing all the while to perform any of the duties of a wife; that after the said abandonment of her husband, the petitioner rejected the name of her husband and assumed that of Green, the name of her former lmsbaud, and bj1- that name instituted and carried on suits in'the District Court of Harris county. To this answer the petitioner demurred, and the demurrer was sustained, and the Probate Court proceeded to decree that the homestead of the deceased, with two hundred acres of land, should be stricken from the inventory and set apart for the petitioner and her minor daughter, and making other provisions for her, under articles 1153 and 1154, Hart. Dig4. The executors appealed to the District Court.
    It is not material to slate all the proceedings of the District Court. It is sufficient (o say that a statement of about the'same matters, as objections to the granling the prayer of the petitioner, was again, on demurrer, overruled, and resulted in a decree similar in its terms to the decree of the probate judge, and the executors appealed to this court.
    
      J. C. W'illcer, for appellants.
    Admitting the answers to be true, they formed a good defense against the petition.
    ■Where, the wife has been guilty of such violations of conjugal duty as would free the husband at the time of his death from all obligations to her for a support, such violations of conjugal duty pleaded by the executors will be a good defense to the claim of the widow against the estate for ail “allowance.”' That the executor or heir may plead such matter. (G Bing., 33, old ed., 135, Hctli v. Graham.) The abandonment of her husband by' the wife exempts him from the duty of supporting her, and forfeits her privileges and immunities under the Constitution. (2 Bright, ÍI. & W., 14; 2 Kent Com., 14G ; Watkins v. Watkins, 2 At.k. It., 97; Head v. Head, 3 Atk. R.., 549; Barrett v. Barrett, 4 Des. B., 448 ; Anonymous, 4 Des. It., 94; Bedell v. Bedell, 1 Johns. Oh. It., G04; 1 Bright, II. & W., 265; 2 Id., 87 ; 2 Itoper, I-I. & W., 134; Cooper®. Clason, 3 Johns Cl). It., 521; Perkins, 9 Law Lib., 104.)
    From the above authorities it would seem that the petitioner would have been barred by the common law of her dower. Admitting the answers to be true, tile testator would have been entitled to a divorce' (Hart. Dig., arts. 847, 848) at the time of his death ; therefore, according to the above'authorities, he was free from all liability to her, and consequently his estate is free from the charge of her support or “allowance.”
    By the demurrer she admits that she “of her own wrong” abandoned the testator, and that she did defame him by “charging him with acts calculated to. “bring him into disrepute and disgrace in the community,” for which cause even a forced heir might have been disinherited. (Hart. Dig., 32G3.) Therefore the claim of the widow (who is not So tenderly regarded in the law as a forced heir) should be disregarded, she having been guilty of the same odense.
    
      E. A. Palmer, for appellee.
    The'facts set up by the executors in defense-against the claim of the widow in this case arc wholly insufficient in law to bar the. wife’s right of dower at common law; and l hold and believe that they are insufficient tobar the rights here given her by statute. If so, the judgment, of the court, upon the demurrers.was not erroneous.
    According to common law, the husband could not, by alienation, deprive the wife of dower; nor could it he barred by a divorce a mensa et thoriu not even for adultery, at common law. (2 Black. Com., 130; see also 24 TVeud- £., 193; 3 Hill R., 95.)
    
      Note 113. — It would seem that a wife who has never in fact resided in this State cannot impeach a sale by the husband alone on the ground that it was the husband’s homestead, and by construction of law her homestead also. (Meyer v. Olaus, 15 T., 518.) The mere face that •a married woman was never in Texas during her husband’s lifetime does not defeat lier -homestead rights, unless she has abandoned her husband. (Lacey v. Clements, 3D T., 661.)
   TjIPSCOMr, J.

The allegations o£ voluntary abandonment oí her lmsband against his will, and continuing apart from him against his wishes and entreaties, an; to be. taken as admitted ; and also the abandonment oí his name, and the assumption of another name, by which name she had brought suits in ihe DM riot Court oí Harris county, is to be taken as true, because the demurrer admits the truth of all (hose allegations.

Can a who, who has voluntarily abandoned the home of her husband, claim tlie ben-dii. iiie homestead law, after the death of her husband? The principle invoiw d in tills question was considered and settled at Tyler, the last Term, in tin- ease of Trawick v. Harris.

In thm. ease the object of the. homestead exemption from forced sale was discussed; ami it was believed that for tlie wife to be still entitled to the exemption in her favor, after she had voluntarily abandoned tlie lmsband and his homes!end. was wholly inconsistent with the spirit and design of that wise and benevolent provision in onr Constitution. If she lias been so unmindful of the marital obligations as to desert her lmsband and home, voluntarily and without any reasonable excuse for doing so, and so continues separate and apart from her lmsband, against his consent and his entreaties, for years, she, whilst- so disregarding her "'duties as a wife, could not interpose ail objection to tlie sale <>£ that homestead, nor can she claim a right to be consulted upon the subject ; and the right of tlie husband to sell would include in it tlie right to dispose o£ tlie same by testament should she still be found absent from the place that both the law and religion had assigned to her.

'i'liere are few if any countries where tlie rights of a wife are more carefully guarded by Jaw than in onr own, but they do'not go so far'as to free lier from all the. responsibility of lier condition, and continue to preserve to lier all the protection anil immunity that she would be entitled to whilst in tlie discharge of lier duties as a wife. The marriage is, by our laws, one of mutual and reciprocal obligation; and the mutuality of those obligations would be entirely disregarded were she to be allowed, in lier own wayward humor, without any just 'cause, to abandon for years the discharge of her duty. To permit her, under such circumstances, after the death of that husband so abandoned and neglected, to claim from his creditors or his children the homestead that she had wantonly abandoned, would be an absurdity, to which the law* affords no sanction hv any fair construction that can be given to it; on the contrary, it is so Ear out. of the reason of tlie law that it would be an implied exception to it. Where the reason of tlie law is clear and manifest, whatever is not within the reason is ail implied exception.

Had the. wife been driven, by the ill-treatment Of tlie husband, to abandon the sacred precincts of that home, .dedicated by the law to lier use and to her protection from tlie misfortunes and adversities of life, she could again have returned to the sanctified asylum when tlie storm, by which she liad been driven out a houseless wanderer, had passed over. And it is to be hoped that tlie demurrer to the facts alleged was more an experiment upon the law of the case than an acknowledgment o£ tlie truth of the charges made against the wife or ot her inability to gainsay them.

The same principle we have discussed and laid down in relation to the homestead apply with equal force to the other provisions set apart for the wife and for the year’s supply. Had she not voluntarily abandoned her home, unless tlie estate was indebted, she could only have bad the year’s allowance to lier under tlie statute, and the homestead.

The judgment is reversed and tlie cause remanded, with instructions to overrule the demurrer filed to'the answer of the executors, and give leave to the • petitioner to controvert tlie truth of tlie matters charged.

Keversed and remanded.  