Mayman v. Reviere

Gould, Associate Justice. The questions presented arise under the probate law of August 15, 1870, and especially under the 26th section of that law, as follows: “ The property reserved from forced sale by the Constitution and laws of this State, or its value, if there' be no such property, does not form any part of the estate of a deceased person, where a constituent of the family survives.” (Paschal’s Dig., art. 5487.) Li Terry v. Terry, supra, it was held by our predecessors, construing this law, that the surviving widow is “ entitled to an allowance in lieu of a homestead, and also in lieu of such personal property exempt by law from forced sale, as her husband did not leave her at the time of his death, and under article 5487 so much of the property as is required to make good these allowances, is not otherwise subject to administration.” Whatever difficulty we might have had in arriving originally at these conclusions, it is reasonable to assume that the decision in Terry v, Terry was followed by the District Courts throughout the State; and the injurious effects which would probably result from a contrary construction at this late day constitute a sufficient reason why we should treat the question as settled. [361] The statute itself is no longer the law, and we are content to accept the contemporaneous construction which we find that it received from our predecessors—a construction, it is to .be remarked, which harmonizes with the legislation of the State both prior and subsequent to the act of 1870. (See Probate Law of 1848 and of 1876.) According to this construction, the court did not err in making the allowances to the widow, nor in holding that these allowances took precedence of the lien of an attachment creditor. (Giddings v. Crosby, 24 Tex., 295.) The judgment is affirmed. Affirmed. [Associate Justice Moose dissenting.]