Gilliam v. Null

Willie, Chief Justice. The land described in the petition was the community property of Richard Gilliam and his first wife, Louisa Gilliam. Hpon her death, the undivided half to which she was entitled descended to the four children of the marriage, Gustavus, Henry, Susan and Annie. Hpon the death of Susan and Annie unmarried and intestate, their one-fourth interest in the entire tract of land — it being one-half of their mother’s half — was inherited, the one moiety by their father, Richard Gilliam, and the other by their two surviving brothers, Gustavus and Henry Gilliam. Hpon the deaths of Gustavus and Henry, their entire interest went to the appellees in this cause. Richard Gilliam having, after the death of his wife, sold all that portion of the tract lying west of Young’s creek, was bound in equity to remunerate the descendants of his deceased wife for their *304 share of the purchase money, by allowing them an interest equivalent thereto in value out of his share of the remaining tract. And the court recognized and followed these principles in ascertaining the amount of land to which all parties were entitled, during the second marriage of Eichard Gilliam, and up to the date of his death. The exact quantity of land ascertained to belong to said Eichard at that date was -ff-jt of the whole tract, and the wife of his second marriage having survived him, a life estate of one-third in said Eichard’s interest was decreed to’his widow. Divested of all questions arising out of the homestead law, this judgment is doubtless correct. The only question is, Did the court err in refusing to allow the second wife, who is appellant in this cause, a homestead right in said tract of land? She and her husband had established their homestead upon the unsold portion of the tract, and lived on it up to the date of his death. If this unsold portion had been the separate property of either Eichard Gilliam or of Ellen, his wife, or the community property of their marriage, the homestead rights of his surviving wife would have continued in it after his death. But the court denied this right to her, for the reason that the land was held by her husband in common with the descendants of his wife; holding that a homestead could not be claimed in an undivided interest. In this the court erred, for the contrary has been established by the decisions of this court. Clements v. Lacy, 51 Tex., 165; Pressley’s Heirs v. Robinson, 57 Tex., 453. This last case is directly in point to the one now under consideration, and is so full upon the question that it is unnecessary to discuss it at any further length in this opinion. Of course this homestead right of Mrs. Ellen Gilliam in the undivided interest belonging to her husband at the date of his death must not interfere with the rights of his cotenants derived from the deceased Mrs. Louisa- Gilliam. They are therefore entitled to have the land so divided and partitioned that their interest thus derived may be set apart to them in severalty. But the interest of the deceased Eichard Gilliam must be subjected to the homestead rights of his widow, and" when severed from the remainder of the tract must remain her homestead so long as she may choose to occupy it as such. Whilst under our statute of descent and distributions the fee of the land thus set apart as a homestead descended at the death of Eichard Gilliam to his heirs at law, who are among the appellees herein, yet it did so subject to the homestead rights of the widow. Const. 1876, art. XYI, sec. 52. And no partition of it can take place till she ceases to occupy it as a homestead. *305 [Opinion approved January 16, 1883.] But it is claimed by appellants’ counsel that this homestead right is coextensive with the entire unsold portion of the land, including that undivided interest held by appellees under the deceased Louisa Gilliam, and they cite as authority the above section of our constitution and the case of Pressley’s Heirs v. ¡Robinson. ¡Neither of these sustain such a doctrine. The case referred to expressly denied to the widow of the second marriage any homestead right in the undivided interest inherited from their mother by the children of the first marriage, and allowed a partition of the property so that such .interest might be set apart to them in severalty. The constitution refers in its terms only to a descent of the land to the heirs of one of the spouses occupying it at the time of such death as a homestead, and prohibits its partition among the heirs of such decedent during the life-time of the survivor, or as long as he or she may choose to occupy it as a homestead. In this case the decedent was Richard Gilliam, and it was to parties claiming as heirs of his estate that the partition is prohibited, not to those claiming an interest in the land through other titles. Hence the appellees were not entitled to have the undivided interest inherited by them from their father set apart to them. But that claimed by them through their deceased mother was derived by title in which Richard Gilliam had no interest at the time of his death, and was: subject to a severance from the balance of the land and a partition-amongst them. For the error in the judgment of the court below in denying to ¡Mrs. Ellen Gilliam her homestead right in the land of which her husband died possessed, and requiring said interest to be-partitioned, it is reversed and reformed so that the commissioners of-partition appointed below, instead of setting apart to ¡Mrs. Ellen Gilliam a tract equal in value to Ty¡r of the land not allotted in the judgment to English and Coyle, be required to set apart to her a tract of of the same, to be held by her as a homestead as surviving wife of Richard P. Gilliam, as long as she may live,- or elect to occupy the same as a homestead, and that said tract' thus apportioned to her be so laid off as to include the- homestead improvements of herself and said Richard, if the same can be-done without damage to the balance of the tract; and that the remainder . of the land be divided in shares and proportions as provided in the judgment below. In all other respects the judgment below is affirmed; the costs of the appeal and of this court to be paid by appellees. Judgment eefoemed.