
    LUCAS et al. v. LUCAS.
    (Supreme Court of Texas.
    Feb. 21, 1912.)
    Homestead (§ 143) — Partition of Pboceeds.
    Const, art. 16, § 52, provides that on the death of the husband or wife the homestead shall descend as other realty, but shall not be partitioned between decedent’s heirs during the life of the surviving husband or wife, or so long as the survivor may elect to keep it as a homestead. Rev. St. 1895, art. 2057, provides that the homestead shall not be partitioned among decedent’s heirs during the widow’s lifetime or so long as she may elect to use the same as a homestead, and article 2058 provides that, when she dies or sells her interest therein or elects to no longer keep it as a homestead, it may be partitioned among the respective owners. Held, that the compensation received for homestead property condemned by a city while occupied by the widow could not be partitioned between -the widow and decedent’s heirs over her objection, but should be ordered by the court to be reinvested in another homestead; the widow and heirs having the same proportionate interest in the proceeds as in the homestead property before its condemnation.
    [Ed. 'Note. — For other cases, see Homestead, Cent. Dig. § 270; Dec. Dig. § 143.]
    Certified questions from Court of Civil Appeals of First Supreme Judicial District.
    Condemnation proceedings were brought to condemn homestead property. From a judgment apportioning the proceeds between Anna Lucas and others, she and some of the others appealed to the Court of Civil Appeals, and it certified a certain question to the Supreme Court.
    Question answered as stated.
    Gregg & Brown, for appellants. A. G. Greenwood, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   DIBRELL, J.

This cause comes before this court upon certified question from the honorable Court of Civil Appeals of the First District, as follows:

“In the above-styled cause pending in this court on appeal from the county court of Anderson county, the record discloses the following facts:

“In a condemnation proceeding instituted by the city of Palestine, the community homestead of appellant Anna Lucas and her deceased husband, 'L. Lucas, was condemned for street purposes. The appellants, Anna Lucas and John E. Lucas, E. L. Lucas, and W. W. Lucas, who are the children of Anna and L. 'Lucas, were parties defendants in said proceedings. The commissioners of ap-praisement valued the property at §1,800. All parties agreed that this award should be made final, which was done, and the money paid into court by the city. Thereupon the appellant Mrs. Anna Lucas presented a motion asking the court to order the whole of said sum of $1,800 invested in another homestead for her use and benefit. Appellants John E. and E. L. Lucas joined in this motion and requested the court to turn over their two-sixths interest in the $1,800 to appellant Mrs. Anna Lucks. Appellee, W. W. Lucas, resisted the motion and asked that the $1,-800 be partitioned and that he he awarded a one-sixth' interest therein. The court refused to set aside the whole of the fund to appellant Anna Lucas, but gave her her one-half interest therein and also the two-sixths interest of appellants John E. and E. L. Lucas, and awarded to appellee, W. W. Lucas, his one-sixth interest.

“Appellants contend that, the sale of the homestead haying been involuntary, the proceeds of such sale was not under the Constitution and laws of this state subject to partition between the heirs of L. Lucas, deceased, against the homestead rights of his surviving wife, Anna Lucas.

“Because our jurisdiction in this case is final, and the question presented is one of much importance, we deem it best to certify for your determination the question: Did the trial court err upon the facts stated in partitioning the $1,800 awarded by the commissioners of condemnation and awarding to W. W. Lucas such interest in such fund as he held in the condemned property as heir of his deceased father?”

No question is raised in the record as to the power of the city of Palestine to condemn for street purposes the homestead of Mrs. Lucas, and hence that phase of the case will not be considered.

In the light of the facts stated, we answer the question in the affirmative. In our opinion the trial court erred in making partition of the proceeds of the condemned homestead against the protest of Mrs. Lucas, who occupied it at the time of the condemnation proceedings, and in refusing to direct the reinvestment of such proceeds in another homestead with the same tenure of title in the fee of such newly-acquired homestead as the one taken under the condemnation proceedings.

That provision of the Constitution of this state (section 52 of article 16), relating to the question under consideration, is as follows:

“Sec. 52. On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned 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, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same.”

Other provisions of law relating to the partition of the homestead are of the Revised Statute's, as follows:

“Art. 2057. The .homestead shall not be partitioned among the heirs of the deceased during the lifetime of the widow, or so long as she may elect to use or occupy the same as a homestead. * * *

“Art. 205S. When the widow dies or sells her interest in the homestead, or elects to no longer use or occupy the same, as a homestead, * * * it may be partitioned among the respective owners thereof in like manner as other property held in common.”

As will be seen, neither the Constitution nor the statutes make provision for the contingency where the occupant is dispossessed and the homestead is by involuntary disposition turned into cash, and the question largely depends upon the construction to be given the Constitution and statutes relating to the subject of homestead exemptions.

Provision has been made for protecting the proceeds of the voluntary sale of the homestead from garnishment or forced sale within six months after such sale. Article 2336, Rev. St. No good reason is apparent to us why such proceeds, when realized from an involuntary sale or disposition of the homestead, should not be likewise protected from partition which is a form of forced process, as it relates to the partition of the homestead between the surviving widow and the heirs of her deceased husband, but, on the contrary, it appears to us that there is greater reason why such proceeds should be protected from forced sale or partition when arising from an involuntary disposition of the homestead than when it is voluntarily disposed of or converted into money.

The decisions ofi this state have been uniform, so far as we know, in holding that the proceeds of the homestead are entitled to the same protection of exemptions, for a reasonable time at least, from forced sale as the homestead itself, when resulting from various causes involuntarily transferring the homestead into cash.

Where the homestead had been destroyed by fire resulting from- inevitable accident, the money realized from insurance on the property was held to be exempt from forced process, in the case of Cameron v. Fay, 55 Tex. 58. That case has been followed with approval by a number of cases in this state, notably that of Chase v. Swayne, 88 Tex. 218, 30 S. W. 1049, 53 Am. St. Rep. 742, in which the opinion was written by the present chief justice, indicating a most thorough consideration of the subject. In commenting on the Gameron-Fay Case, as to whether the ruling there was the result of a proper construction of the Constitution, or of judicial legislation, Chief Justice Brown said: “It is claimed by counsel for defendant in error that the exemption of the money involved does not arise out of the Constitution, but rests upon the decision of Cameron v. Fay, in which an equitable construction, as it is called, was placed upon the Constitu-tion, thereby creating an exemption which did not arise ont of its language. If this were correct, that case should be overruled. The decision of a court contrary to the Constitution of a state can have no validity; it is the exercise of unauthorized power on the part of the court. There is a marked distinction between liberal construction of Constitutions and statutes, by which courts, from the language used, the subject-matter and purposes of those framing them, find out their true meaning, and the act of a court in ingrafting upon a law or Constitution something that has been omitted, which the court believes ought to have been embraced. The former is a legitimate and recognized rule of construction, while the latter is judicial legislation, forbidden by article 2, § 1, of the Constitution of the state, by which the powers of the government are distributed to three departments, the legislative, executive, and judicial, forbidding any one to exercise the powers conferred upon another. The protection claimed for insurance money upon a homestead does not depend upon the case of Cameron v. Pay, but upon the Constitution, the meaning and intent of which the court, in Cameron v. Fay, by fair construction ascertained to include the proceeds of such policies.”

So where the homestead was established on a tract of 520 acres of land, owned jointly with others, and upon partition sought by the tenants in common with the homestead claimant, it having been adjudged impracticable to award such homestead claimant the part occupied and improved by him, the proceeds arising from the sale of such land to effect partition was held exempt in the case of Jenkins v. Volz, 54 Tex. 636, and the ruling there announced has been since followed with approval by this and other courts in this state. In the course of discussion in the ease of Jenkins v. Volz, the court laid down this rule: “The constitutional protection to a homestead of 200 acres should be enforced in its spirit, and, so enforced, protects the homestead, when established on land owned jointly with others, to the extent of an undivided interest of 200 acres. If, on partition with their cotenants, the part of the tract occupied and improved by appellants should be allotted to them, their homestead rights to 200 acres, including their improvements, would be complete, notwithstanding the mortgage. If, however, it should be found impracticable to allot to appellants the part occupied and improved by them, that fact should not and would not operate to defeat or lessen their homestead. Even if, in making partition, the entire tract had to be sold, the homestead right would attach to and be protected in the proceeds of the sale.”

In the case of Kirkwood v. Domnau, 80 Tex. 648, 16 S. W. 428, 26 Am. St. Rep. 770, following the rule established in Jenkins v. Volz, the court held that the costs of the partition proceedings properly adjudged against the homestead claimant ixi a suit by tenants in common for partition, and, where sale was made to effect such purpose, the proceeds of the homestead thus converted into money was not subject to the payment of costs directed by the judgment of the court to be deducted from the shares in the proceeds belonging to the respective parties. In this ruling this court held strictly that the proceeds of a homestead, when converted into money by involuntary process, could not be subjected to any use not specially enumerated in the Constitution.

In line with the above holding are those cases beginning with Wood v. Wheeler, 7 Tex. 23, in which it has been held that where the excess value over the homestead exemptions was sought and obtained by forced sale of the homestead and converted into money, the sum representing the value of the homestead is exempt in its changed form.

The idea of the homestead exemption, as embodied in law, is strictly of American origin. The first statute of this kind was enacted by the republic of Texas January 26, 1839. The first constitutional guarantee of homestead exemption was that of the Constitution of Texas in 1845, and ever since that date the several Constitutions of this state have been so framed as to carefully preserve that guarantee, with limitations removed and benefits enlarged, and the Legislature of this state has carefully, as suggested by Judge Brown in Chase v. Swayne, supra, by constitutional amendments and statutory enactments met and dispelled every limitation or burden placed upon the homestead by judicial construction, manifesting the evident policy of surrounding the homestead with the largest liberality. In addition to this, our courts have responded to the legislative policy of liberal homestead exemptions, by adopting the most liberal rules of construction to carry out the legislative intent.

If a city, in the exercise of its power of eminent domain, has power to condemn the ■homestead of a surviving widow for street uses, which may be conceded for the purpose of this illustration, and the proceeds of such homestead paid into the registry of the court under such proceeding becomes subject to partition, then the beneficent provisions of the Constitution and statutes guaranteeing and protecting the homestead may be entirely defeated by such condemnation proceedings against the election of the surviving widow. This would be possible for the reason that the surviving wife is as fully protected in the use and occupancy of a homestead on the separate property of her deceased husband as she would be on property that belonged to their community estate. If the homestead of the widow on the separate property of the husband can thus be converted into money and the cash become subject to partition, she would be left without a homestead and without means of acquiring one by a reinvestment of such proceeds, the bulk of the proceeds going, under the laws of inheritance, to the heirs of the deceased husband with only such interest as may be given the wife under the laws of descent and distribution. This court cannot subscribe to a doctrine that by such indirect method the purpose and intent of the Constitution and laws, to protect the widow in the enjoyment, use, and shelter of the homestead, may be defeated.

It is true the law makes no provision for reinvesting the proceeds or the surplus of the proceeds of the homestead when converted into money by forced sale or by any other involuntary process. But the purposes of the law must be given effect where it may be done by fair and reasonable judicial construction and without invading the province of the lawmaking power.

From the ruling of this court as above indicated, we are clearly of opinion the proceeds of the condemned homestead were not subject to partition between the widow, Mrs. Lucas, and the heirs of her husband against her election. It is also clear, as we think, that such proceeds were upon the same basis of ownership as the homestead before its conversion into money, and that the widow owned one half and the heirs of her husband the other half, the whole being subject to reinvestment in another homestead in such manner as to indicate by proper recitations, in the judgment of the court conducting the condemnation proceedings, the interest therein of the interested parties, subject to the homestead use in the widow during her life or for such period as she may elect to use same as a homestead.

While it may be true that the judge of the county court does not stand in the relation of trustee to invest the proceeds of the homestead thus condemned, but since the method of procedure in such condemnation proceeding requires that such damages or appraised value of the property as made by the commissioners to be deposited or otherwise secured for the benefit of the interested parties, and since the money has been deposited in the registry of the court, it becomes his duty to see that it is properly disposed of. He is not authorized to make partition of the money nor to pay it over to the homestead claimant, but he is authorized, and wé conceive it to be his duty, under the circumstances of this case, to protect all the parties interested by authorizing and directing its reinvestment in another homestead as heretofore indicated.  