Kessler v. Draub

Gould, Associate Justice. After the death of his wife, in 1867, Daniel Draub, with two children of that marriage, continued to occupy the same homestead, it being community property. His son become of age and lived elsewhere, and in 1873 his daughter married and ceased to live with him.. In 1874 Kessler recovered a judgment against him, under which he levied on the late homestead, and having bought it in, brought this suit to recover possession. The question presented is, whether Daniel Draub, continuing to occupy the same place as his residence, but having with him no family other than at times a single servant, that place was, in 1874, protected from forced sale as his homestead. [580] [Opinion delivered February 18, 1880.] Taylor v. Boulware, 17 Tex., 77, is authority for the continuance of the exemption in favor of the surviving husband, “ though without servants or any one with him,” so long as the place continued to be his residence. (See also Wood v. Wheeler, 7 Tex., 13.) That the widow, under like circumstances, retained her homestead rights, has never been questioned, and, indeed, could not be under the provisions in her favor in the various probate laws of the State. The act of August 15, 1870, which was in force in 1874, provided that exempt property should form “ no part of the estate of a deceased person when a constituent of the family survives,”—apparently extending to the widow no greater protection than to the widower, both being constituents of the family. It is not proposed to discuss the question, or attempt to vindicate the reason and consistency of the law in continuing to protect the surviving husband in' the late homestead of the family, whilst it denies to him, or to any single person not the head of a family, like protection in a newly-acquired home. It is enough that we find in the constitutional and statutory provisions on the subject, and in the decisions of this and other courts, authority for our conclusion, that, at the time of sale, Daniel Draub was still protected in residing on the late family homestead. (Const., of 186‘9-’70, art. 12, sec. 15; Paschal’s Dig., arts. 5487, 6834; Taylor v. Boulware, 17 Tex., 77; Wood v. Wheeler, 7 Tex., 13; Silloway v. Brown, 12 Allen, 30; Barney v. Leeds, 51 N. H., 253; Smyth on Homestead, secs. 151, 152; Const. of 1876, art. 21, sec. 52; Bev. Code, art. 2009.) Under the evidence, the court did not err .in holding that Daniel Draub had not abandoned his homestead at the time of the sheriff’s sale. His subsequent sale of his half-interest to his children was not a matter of which creditors could complain, and certainly gave the plaintiff no right to recover in this suit. Affirmed.