Alston v. Ulman

McAdoo, J. J. A. Houze, a citizen of Alabama, in ' 1862, sold his homestead in that State, and purchased. [158] land in Texas, with the purpose and intention of immigration to and settlement with his family upon his newly acquired land in Texas. But before he accomplished his purpose of removal, he died in Alabama. 'He left surviving him three minor children in Alabama. He left no homestead there ; he left, however, a large estate of some $40,000 of personal property there, which was administered in the probate court of that State. These three minor children have been brought to Texas by their friends, .and reside in Lamar county, in the vicinity, not on the land purchased by their father. Letters of administration were taken out in Lamar -county by W. H. Alston; and pending the administration, the minor heirs filed a petition setting up the facts above stated—the sale of the homestead in Alabama, the purchase of the land in Texas, the intention of their father to remove to Texas with his family and settle on these lands, his death and the consequent non-removal of the family; that they have no homestead, and are now ■constituents of the family and citizens and residents of the State of Texas; and they prayed for a substituted allowance, in lieu of the homestead, out of the estate being administered. The administrator and Dickerson, a creditor of the estate of Houze, resisted the claim in the District Court, set up by the minors, upon the ground that at the time of the death of Houze, neither he nor his family were citizens or residents of the State of Texas, and the minors were not, therefore, entitled to a homestead, or a substituted allowance therefor, out of the Texas estate of their deceased father. The court below, however, decided in favor of the -minor children, holding that they being now permanent residents of the State, and the estate of their father being administered in the State, they are entitled to the [159] same rights as they would be if their father had been a citizen of Texas and had died in this State; and a substituted allowance in lieu of a homestead was awarded. From this decree of the District Court the administrator, Alston, and Dickerson, the creditor, have prosecuted an appeal to this court. We think the action of the court below was erroneous. In the case of Jordan v. Godman (19 Texas, 275), where the husband and wife abandoned a homestead already acquired and changed their domicil to another State, and the husband died, the wife could not return to Texas and claim the homestead. Domicil in the State is necessary to entitle a party to homestead rights. To constitute domicil, there must be residence and the intention to make the place the home of the party. (Story’s Conf. of Laws, Secs. 52, 53.) It is not sufficient that .there was an intention to become a resident; residence and intention must concur. The judgment in the District Court is reversed and the •cause remanded. Reversed and remanded.