Ragland v. Rogers

Evans, P. J. In this case the plaintiff brings her suit in the county court as the widow of the late John B. Ragland, deceased, against his administrator, averring that.she and her children are reduced to absolute want, and praying the court to set apart to her, for her use and that of her children, certain lots of ground in the town of Victoria, or so much thereof as might amount to her homestead claim of two thousand dollars, and all exempt personal property not received by her in kind, or in lieu thereof, its value in money; proposing to have set apart for her certain lots, including her dwelling, at their appraised value, to-wit:' $2863, agreeing to pay to the administrator the excess, $863. The plaintiff amends her original petition, and asks, in case her prayer is not granted, that she be permitted to select, in lieu of the lot on which her dwelling is situated, other lots at their appraised value. On the hearing of the case in the county court, there was a de [620] cree from which the plaintiff appealed to the district court, where -the case was tried de novo, and at the hearing thereof the court charged the jury : “ In this case I charge the jury, that you are to find one specific verdict, viz.: What was Dr. Ragland’s family residence at the time of his death ? And in determining this issue, you should determine from the evidence what lot or lots, with the improvements thereon, Dr. Ragland with his family occupied' as a resir dence at the time óf his death. • ■ “ I further charge you that you should not, in forming your verdict, take into consideration any facts or proof of the ownership by Dr. Ragland of any farm land, or even town lots, provided the same is separated by a street, or property owned by other parties, from the lot on which the actual family residence is situated.’’ The court refused to charge that a man’s residence is not confined, if within the limits of a town,- recognized as such by act of incorporation and extension of streets, etc.,' to number or contiguity of lots, but embraces the lot or lots used and occupied by the family, or any portion of it. , Under the instructions .of the court the jury found the following special verdict :• “ That the family residence of Dr. J. B. Rag-land, at the time of his death, was the lot-No. 4, upon which his house was built, in block No. 71, in the town proper of Victoria.” Upon this verdict the court decreed that “ the homestead of said decedent, consisting of building lot No, 4, in block No. 71, in the town of Victoria, with the improvements thereon, be set apart to said widow and the children,” and that “ the personal property exempt from forced sale be set apart to the said widow and - children.” From this decree the plaintiff, by writ of error, comes into this court and assigns as error the charge of the court, and the refusal of the court to give the charge asked by petitioner. There being no statement of facts nor bill of exceptions, this [621] court cannot consider all the points raised by the assignment of errors, but will only consider the error patent in the charge of the court below, in excluding testimony from the jury, by charging the jury not to consider “ any facts or proof of the ownership by Dr. Ragland of any farm, land, or even town lots, provided the same is separated by a street or property, owned by other parties, from the lot on which the actual family residence is situated.” The appellant attempts, in his brief, to supply the want of a statement of facts and bill of exceptions, by an affidavit made some days after the adjournment of court, alleging that contrary to custom the court below adjourned on the same day upon which the trial took place, and thus prevented the plaintiff’s attorneys from having it in their power to submit to it either the one or the other. It is not necessary for this court to express an opinion as to the proper course of counsel in the court below, upon such a contingency, for the error in the charge to the jury is apparent on the record. (See Crook, et al., v. McGreal, 3 Texas, 487; Galbreath v. Templeton, 20 Texas, 45; Fox v. Sturm, 21 Texas, 406; Weisiger v. Chisholm, 22 Texas, 670; Davis v. McGehee, 24 Texas, 209; Neill v. Newton, 24 Texas, 202.) It needs no statement of facts to make the presumption strong in the mind of this court that this charge excluded proof of the existence of other lots than No. 4, block No 71, which formed a' part of the homestead, and which the plaintiff was entitled to have included, provided the said lot. No. 4, block No. 71, was less than $2000 in value. It is obvious that the ruling of the court was made under the impression that a homestead in a town or city could not be separated by a street, or by property owned by another, though of less value than $2000. Chief • Justice Hemphill, in the case of Pryor v. Stone, 19 Texas, 371, says: “ The limitation of the homestead in a town is [622] not to the number,.bat to the value of the lots,” nor “ how far, or how near, or how remote from each other.” The limitation of the homestead is not confined to the former residence of the family, nor to town or country. The law gives the widow the full and free right of selecting and having her homestead set apart, for her and her children, out of the whole property of her deceased husband. The homestead exemption is for the benefit of the family, and the head of the family is entitled to select his or her homestead, as he or she may judge from the circumstances of each case to be for the best; and where the homestead selected by the widow may not he of the value of $2000, it should be made up in money arising from the sale of other property, should there be any. For these reasons this case is reversed and remanded. Reversed and remanded.