This case was tried below upon the following agreed statement: "1. That W.H. Shumate, the temporary administrator, rented to deceased, B.B. Champion, certain lands in Grayson County, Texas, for the year 1895, at an agreed rental of $175. That said Champion died intestate in August, 1895, leaving surviving him no wife, and but the following children, who are his heirs at law, and have ever since the date of their father's death lived together and now constitute one family, to-wit, — Jennie, Leo, Lizzie, Prudie, Charlie and John Champion, all of whom are minors, except Jennie and John, and Jennie is an unmarried daughter of the deceased.
"2. That deceased left an insolvent estate; that he owned no land or homestead, and had not in kind all the property exempted by law from execution, and that if all the property of said estate, including the crop raised on the rented premises in 1895 and proceeds thereof, were set aside to said minors and unmarried daughter for their allowances in lieu of the homestead and other exempt property and for a year's support, the same would be inadequate and not more than they are entitled to for such allowances.
"3. That Shumate qualified in proper manner as temporary administrator and took charge of the property of said estate, and under orders of the County Court gathered the crop and converted the same into money, and that he paid out of said amount for gathering and marketing the same, and as attorney's fees, the amounts shown by his report, also County Court costs in this case, all amounting to $56.75.
"4. That said W.H. Shumate held a landlord's lien on said crops and also a mortgage thereon executed by deceased in his life time to secure the payment of said $175 rents, and that the entire crops found on the rented premises were not sufficient to pay said rents. *Page 598
"5. Said minors and unmarried daughter have no independent means other than the property of said estate, and that they occupied the rented premises for the full term of the lease given to B.B. Champion, deceased.
"6. That the questions of law to be submitted and decided by the court are:
"(a) Was the landlord's lien or the mortgage lien upon the crops upon said rented premises superior to or subordinate to the claim of said minors and unmarried daughter for their allowances as aforesaid?
"(b) Can the proceeds of said crop be set aside and applied to make up said allowances, notwithstanding Shumate held a landlord's and mortgage lien on the same?
"(c) Will the claim of said minors and unmarried daughter for said allowances be prior and superior to the costs and expenses of administration, or subordinate thereto?"
The trial judge filed these conclusions of law:
"1. Under the facts as agreed upon, the landlord's lien and mortgage lien of Shumate upon the crops described are both subordinate to the allowances to the unmarried daughter and minor children of the deceased which the law requires shall be set aside to them.
"2. And therefore, the proceeds of said crops should be set aside and applied for the purpose of making up said allowances, notwithstanding the fact that Shumate holds a landlord's lien and a mortgage lien thereon.
"3. The claim of said unmarried daughter and minor children for said allowances is superior to, the claims for costs and expenses of administration."
A decree was entered making an allowance for the children of the deceased of the entire proceeds of the sale of the crop, the costs of this proceeding and of the entire administration were charged against Shumate, and he was discharged from the administration of the estate. From this judgment the writ of error has been prosecuted to this court.
Is the right of the children to the allowance superior to the landlord's lien given by the statute upon the crop to secure the payment of the rent of the land upon which the crop was raised? This question has not been passed upon by our Supreme Court, so far as we know, and to answer it will require the examination and construction of several statutory provisions relating to the administration of the estates of deceased persons and to the subject of landlord's liens for rents.
Article 2046, Rev. Stats., makes it the duty of a court in which an administration is pending, to set aside, for the use and benefit of the widow and minor children and unmarried daughters remaining with the family of the deceased, all such property of the estate as may be exempt from execution or forced sale by the Constitution and laws of this State, except one year's supply of provision.
Article 2047, provides, in case the specific articles exempted by law are not among the effects of the estate, that a reasonable allowance should be made in lieu thereof.
By article 2053, it is provided that property which the husband has *Page 599 encumbered with a lien, binding upon his wife, or upon which a vendor's lien exists, shall not be set apart for this purpose until the debt secured by lien is discharged.
In case the estate should be found insolvent, the title of the widow and children to the exempt property or allowance set apart or paid to them is made absolute and free from all debts against the estate, except the debts for funeral expenses and the expenses of the last sickness of the deceased. These demands are made superior to the rights of the widow and children to the exempt property or allowance in lieu thereof. Arts. 2055 and 2061.
The homestead is not liable to these demands, but is made liable for the purchase money, taxes due thereon and debts due for work and materials used for improvements thereon. Art. 2060.
Article 2053, directing that property upon which liens exist shall not be set aside to the widow and children until the liens are discharged, has been construed to have reference to solvent estates (Krueger v. Wolf, 33 S.W. Rep., 667), and the right of the widow and children to the exempt property or allowance in lieu thereof, is held to be superior to lien creditors generally. Robertson v. Paul, 16 Tex. 472; Giddings v. Crosby, 24 Tex. 295; Mabry v. Ward, 50 Tex. 408 [50 Tex. 408]; Abney v. Pope, 52 Tex. 292.
The landlord's lien is not embraced within the exceptions for which the exempt property of the estate is made liable by the statutory provisions relating to estates of deceased persons, and given preference over the right of widow and children to the exempt property or allowance in lieu thereof. If there were no other statute affecting the question, we would be forced to the conclusion that the landlord's rights were subordinate to those of the widow and children of the deceased, as related to exempt property or the allowance in lieu thereof. But we have another statutory provision' which must be considered in determining the question.
Among the provisions relating to the subject of Landlord and Tenant, is the following article, — "Such preference lien shall continue as to such agricultural products and as to the animals, tools and other property furnished to the tenant as aforesaid, so long as they remain on such rented or leased premises and for one month thereafter, and such lien, as to agricultural products and as to animals and tools furnished as aforesaid, shall be superior to all laws exempting such property from forced sales." (Rev. Stats., 1895, art. 3237.)
This seems to wipe out all exemptions when considered in relation to the landlord's lien upon agricultural products, animals, tools, etc., furnished the tenant. As to such lien upon such property, there is in legal effect no exemption law. It places the landlord's lien above every character of claim, and it would not be in consonance with established rules of construction to make this statute upon this special subject subordinate to the general statutory provisions governing the administration of estates. In Stokes v. Burney, 22 S.W. Rep., 127, Key, J., says: "The court did not err in holding that the landlord's lien was superior to the *Page 600 claim of Mrs. Stokes and her minor children to an allowance in lieu of property exempt from forced sale, as authorized by our probate law. It is expressly provided by statute (Rev. Stats., art. 2342), that exemptions of personal property shall not override claims for rent, and it necessarily follows that an allowance in lieu of such exempted property is controlled by the same statute."
It is urged that the point there decided was not necessarily involved in the case, and for that reason it should not be considered authority. An analysis of the case leads to the conclusion that the question was not necessarily involved; but independent of that decision, we think the conclusion announced sound.
We are of opinion that the decision of the court below is wrong, and the judgment is reversed and the cause remanded, with the direction to the court below to subject the proceeds of the crop to the payment of the landlord's lien debt. The litigation having been instituted by the lien creditor, and the fund brought into court by him, it is also chargeable with court costs.
Reversed and remanded.
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