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the judgment of the court sustaining a plea of privilege." Article 1833, R. S. 1911.
the death of the husband, wife, or both, the homestead shall descend in like manner as other real property, but shall not be partitioned among the heirs of deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy it as a homestead, or so long as the guardian order of proper court to use and occupy it, and of minor children may be permitted under the Rev. St. 1911, arts. 3235, 3413, 3414, and 34213428, inclusive, relative to setting apart the homestead and its liability for debts, when the
Prior to the enactment of the above statutory provisions, when the plea of privilege was sustained, the case was dismissed, from which judgment an appeal would lie. The proceeding was the same then as now, except that the case will not be dismissed. The judgment would be interlocutory, from which no appeal would lie, unless the right is pre-head of a family dies intestate leaving a widow, served by this language:
"Provided, that nothing herein shall prevent an appeal from the judgment of the court sustaining a plea of privilege."
minor child, or unmarried daughter, whether his estate is solvent or insolvent, the homestead, whether set apart by the probate court for the use of such members of the family or not, descends and vests in all the heirs of the decedent, subject to the right of the widow and minor children to use and occupy it, absolutely exempt from any present or future liability for the decedent's debts, except such as the Constitution permits to be secured by a lien thereon, and that status is not affected by the subsequent voluntary sale or abandonment of the homestead.
[Ed. Note.-For other cases, see Homestead, Cent. Dig. § 257; Dec. Dig. § 146.*] 2. HOMESTEAD (§ 145*)-RIGHTS OF SURVIVING SPOUSE-LIABILITY FOR DEBTS.
If the plea of privilege in this case had been tried under the former law, the case would have been dismissed, and plaintiff could have appealed, and the action sustaining the plea of privilege would have been revised. If the plea had been overruled, the defendant, upon appeal, could have had it reversed. The evident purpose of the proviso to article 1833 was to preserve to the plaintiff the right of appeal which existed before that article was enacted. If the law be construed so as to require the plaintiff Regardless of solvency or insolvency, a to await a trial in the county to which it and use the homestead, exempt from forced surviving husband or wife is entitled to hold was transferred, the right to have the court's sale for the payment of his or her own debts, action revised would be practically denied. so long as he or she may choose to do so, even The construction we give to the proviso pre-ber of the family; but the subsequent abandonthough such spouse be the sole remaining memserves the rights of both parties, and will ment of the homestead ends its right to exempprevent the delays and expense of a trial the|tion against debts of that character. judgment in which might be reversed on the [Ed. Note. For other cases, see Homestead, issue of venue alone, requiring a second trial Cent. Dig. §§ 268, 277, 280, 285; Dec. Dig. § 145.*] on the merits. The language of the proviso to article 1833 cannot be applied otherwise than as saving to the plaintiff the right of appeal as it formerly existed in such matters, constituting an exception to the general rule that an appeal cannot be prosecuted from interlocutory orders or judgments.
 We answer that the appeal was authorized in this case. If the plea of privilege was filed in the due order of pleading, the filing thereafter of a plea over against plaintiff did not affect the right of the defendants to insist upon the transfer of the case to the county in which they resided.
 The granting of the plea of privilege had the effect to transfer to Knox county the case entirely as to parties and subject-matter of the suit and plea of defendants over against plaintiff.
Error to Court of Civil Appeals, Fourth Supreme Judicial District.
Suit for partition by L. Thulemeyer against Dorothea Hoefling and others. A judgment in favor of the defendants Mary Hoefling and others was reversed by the Court of Civil Appeals, and they bring error. Affirmed.
Henry E. Vernor, Clark & Bliss, and Denman, Franklin & McGown, all of San Antonio, for plaintiffs in error.
HAWKINS, J. William Hoefling, Sr., hereinafter called decedent, and his wife, Dorothea, owned lot 9 in block 16, city block 432, in San Antonio, as community property, and made their home thereon from a date prior to September 17, 1895, until he died in November, 1898. Decedent left surviving him his said wife, who qualified as administratrix of his estate, and their three children, Rudolph, Emma, who married Wolfe, and Henry, who conveyed to plaintiff in error, L. Thulemeyer, an undivided one-eighth interest in said lot; also four grandchildren, W. R., Daisy, who married Voight, G. A., and Willie, children of another son, William Hoefling, Jr., whose death preceded that of decedent; also Mary Hoefling, who was the widow of said deceased son and mother of said grandchildren. By order of the pro
bate court said lot 9 was set apart as a homestead to decedent's widow; but she subsequently abandoned it prior to the institution of this suit.
William Hoefling, Jr., had insured his own life for the benefit of his said wife, Mary, and after his death she collected thereon $3,500, which she loaned to her father-inlaw, William Hoefling, Sr., on September 17, 1895, taking his interest-bearing note therefor, in consideration of which loan he and his said wife on that day executed, duly acknowledged in the manner required by law for conveyance of real estate, and delivered to said Mary Hoefling, a written instrument which recited said loan and note, and continued thus:
"Now, therefore, to secure the payment of said note, and in event of failure to pay when due, or in event of the death of the said William Hoefling, then, in such events, the said Mary Hoefling shall have, and we do hereby grant to her, a $3,500 interest in our joint estate of which we may be possessed at such time, irrespective of her natural heirship or that of any others," etc.
A portion of that debt remains unpaid.
Said note and written instrument were duly proved up, allowed by the administratrix, and approved by the probate court, as a third-class claim against the estate of decedent, for $3,500, with interest, and, for payment thereof, that court decreed a foreclosure of lien "upon all the property of said estate." Mary Hoefling transferred one-third of said claim to Vernor, who transferred his interest in said claim to D. Sullivan & Co., a firm composed of D. Sullivan and W. C. Sullivan.
Having acquired Henry Hoefling's undivided one-eighth interest in said lot 9, L. Thulemeyer brought this suit for partition thereof, and for an accounting for rents thereon, and distribution thereof. The defendants were said Dorothea Hoefling, a widow, Rudolph Hoefling, Emma Wolfe and her husband, Bert V. Wolfe, Mary Hoefling, a widow, W. R. Hoefling, Daisy Voight and her husband, Willie Hoefling, a minor, and H. E. Vernor, D. Sullivan, and W. C. Sullivan.
Mary Hoefling answered, alleging the foregoing facts relating to her said loan to William Hoefling, Sr., and said note and written instrument of September 17, 1895; that, after Dorothea Hoefling qualified as such administratrix, she had represented that there was ample property, other than said lot 9, to pay off said debt, and induced said Mary Hoefling to prove up her said claim against decedent's estate; that said administratrix proposed to her that, if she would allow her to keep $500 out of $1,580, which said administratrix had collected for said estate, the latter would recognize her interest in the property in controversy to the extent of the balance of the former's said claim, which offer she accepted, whereby she became the owner of an undivided 121/370 interest in
and conveyed an undivided one-third interest in and to her said claim, right and title, and that he had assigned and conveyed same to said D. Sullivan & Co.; whereupon she prayed for judgment against all the other parties for her said interest in said property, and for general relief.
Dorothea Hoefling, Emma Wolfe and her husband, and Rudolph Hoefling defended upon the grounds that said claim of Mary Hoefling against said estate had been so allowed, and said decree of the probate court concerning it entered, and that the property in controversy was not subject to partition because it was the homestead of Dorothea Hoefling, and had been so set apart to her; wherefore the matter was res adjudicata. The answer of Vernor and that of the Sullivans adopted said answer of Mary Hoefling, and prayed that their respective interests aforesaid be protected.
The jury, to whom the cause was submitted upon only one special issue, found that Dorothea Hoefling had abandoned said lot 9 as homestead; whereupon the trial court entered a decree that said lot 9 be sold to satisfy said claim of Mary Hoefling, amounting to $5,712.45, and that the balance, if any, be distributed as follows: To Dorothea Hoefling one-half, and to Emma Wolfe and L. Thulemeyer each one-eighth, to Daisy Voight, W. R. Hoefling, G. A. Hoefling, and Willie Hoefling each one thirty-second of such balance; that Mary Hoefling now owns two-thirds of her said claim; that D. Sullivan & Co. hold the remaining third of said claim for any debt which said Vernor may owe them; and that two-thirds of the amount of said claim be paid over to Mary Hoefling, and the other third to D. Sullivan & Co. for the purposes stated. From said judgment, Dorothea Hoefling, Emma Wolfe and her husband, and Rudolph Hoefling appealed, as against all the other parties.
The Court of Civil Appeals held, substantially, that said written instrument of date September 17, 1895, was intended merely to constitute a lien to secure the note therein mentioned, and, inasmuch as said lot 9, therein described, was at that time the homestead of William Hoefling, Sr., and his said wife, the makers of that instrument, such lien could not apply to said lot 9, but, as to it, was inhibited by the Constitution of Texas; that, under the facts and the Constitution and statutes and decisions of this state, said lot 9 passed to decedent's heirs, exempt from his debts, whether his estate was solvent or not, and so remained; that there was ample evidence to support the jury's finding; and that decedent's widow had abandoned said homestead, but that, as to decedent's creditors, such abandonment was wholly immaterial, whether decedent's estate was solvent or not, because, "when William Hoefling, Sr., died, the homestead descended and vested in his widow and children, free of any
passed forever beyond the reach of creditors, | of our general statute of descent and distriand the loss of its homestead character could bution, subject, however, to the constitutionnot instill life into an invalid lien, whether al and statutory right of the widow and of the same was evidenced by mortgage or other instrument, or by a judgment"—and that, if plaintiffs in error did not so contend, "they are in no better position when they claim that a creditor's lien, which had not attached to the homestead before, arose when the abandonment took place," and accordingly reversed said judgment of the district court in favor of Mary Hoefling, and decreed that she take nothing by her cross-action, that said lot 9 be partitioned, one half to Dorothea, and the other half to said children and grandchildren of decedent, and L. Thulemeyer, who bought a child's share, in the proportions indicated in said judgment of the district court, and that said property be sold for such partition, and the proceeds distributed among said owners according to their said respective shares.
Mary Hoefling and those claiming under her, as stated, alone applied for a writ of error, which was granted. They complain, first, of the action of the Court of Civil Appeals in treating the estate of said decedent as insolvent, and, secondly, of its holding that, whether said estate was solvent or insolvent, the homestead property at his death descended to and vested in his heirs, exempt from his debts, and forever beyond the reach of his creditors, and that consequently, upon abandonment of the homestead by the widow, plaintiffs in error, as creditors of his estate, had no right to subject said property to payment of their said claim. In support of their said first ground of complaint, plaintiffs in error point out the facts that no issue as to solvency or insolvency of the estate was pleaded or submitted to the jury, and contend that no such issue was made by the evidence. As to that entire phase of this case, we deem it sufficient to say this: It is obvious that, if the Court of Civil Appeals be correct in its view that it is wholly immaterial whether said homestead was solvent or insolvent, its action in treating the estate as insolvent resulted in no practical injury to plaintiffs in error, so, in testing their rights in the premises, we will give them full benefit of their contention upon that point, and will consider their said second ground of error upon the assumption that said estate was in fact solvent.
 Unquestionably, under our present Constitution and statutes and the decisions of this court, whenever the head of a family dies intestate, leaving surviving him one or more constituents of the family, such as a widow, or a minor child, or an unmarried daughter remaining with the family, and his estate is insolvent, his homestead property, whether it be set apart by the probate court for the use and benefit of such surviving constituent or constituents of the family or not, descends and vests in all the heirs of such
the guardian of the minor children of the decedent to use and occupy it as a home, but absolutely exempt from any and all present or future liability for such decedent's debts, and so forever free from all claims of his creditors, whether they be approved by the probate court or not, except such claims as our Constitution permits to be secured by a lien upon the homestead; and that status, in so far as rights of general creditors of such decedent are concerned, cannot possibly be affected by subsequent voluntary sale or abandonment of such homestead property. American Bonding Company of Baltimore v. Logan, 166 S. W. 1132, decided on a former day of this term, and cases cited. But does the same rule apply where such estate is solvent? If so, said judgment of the Court of Civil Appeals should be affirmed.
In Givens v. Hudson, 64 Tex. 471, and in Roots v. Robertson, Adm'r, 93 Tex. 365, 55 S. W. 308, the case turned upon the point that no such constituent of the family survived the deceased owner of the homestead; consequently all question as to solvency or insolvency of his estate was wholly immaterial. See, also, Phillips v. Price, 12 Tex. Civ. App. 408, 34 S. W. 784; Wilkins v. Briggs, 48 Tex. Civ. App. 596, 107 S. W. 135.
Hall v. Fields, 81 Tex. 553, 17 S. W. 82, dealt with the rights of the decedent's divorced wife and of their minor children as against the rights of a purchaser of homestead property from the executor of decedent's will. The case did not involve rights of his creditors.
McAllister v. Godbold (Civ. App.) 29 S. W. 417, does not disclose whether the estate of the testator was solvent or not; moreover, that appeal was dismissed by the Court of Civil Appeals for want of a sufficient appeal bond.
In Green v. Crow, 17 Tex. 180, the question now before us was expressly pretermitted as not material to the decision, because the estate was insolvent.
And in each of the following cases, which arose under our present Constitution, the estate of the decedent was likewise insolvent; Rainey v. Chambers, 56 Tex. 17; Davis v. McCartney, 64 Tex. 584; Zwernemann v. Von Rosenberg, Adm'r, 76 Tex. 522, 13 S. W. 485; Childers v. Henderson & Co., 76 Tex. 664, 13 S. W. 481; Lacy v. Lockett, 82 Tex. 190, 17 S. W. 916; Cameron v. Morris, 83 Tex. 14, 18 S. W. 422; Ford v. Sims, 93 Tex. 586, 57 S. W. 20.
That is also true as to each of the following cases under that Constitution; the references being to decisions by our Courts of Civil Appeals: West v. West, 9 Tex. Civ. App. 475, 29 S. W. 242; Stephenson v. Marsalis, 11 Tex. Civ. App. 162, 33 S. W. 383; Krueger v. Wolf, 12 Tex. Civ. App. 167, 33 S. W. 663;
Gráce, 57 Tex. Civ. App. 386, 122 S. W. 401; and proved that there existed a homestead Davie v. Green, 132 S. W. 874.
and exempt property in kind, to which the
This court, in an opinion by Associate Justice Brown, now Chief Justice, affirmed that decision of the Court of Civil Appeals, but held, expressly, that by filing her said suit for partition of all of said property, including that which in this court was claimed by her as homestead, she waived her right to have the homestead and personal property exempt from forced sale set apart to her use, and all of said property thereupon became subject to partition among the heirs, and that in such partition the aforesaid equities should be adjusted as therein directed. It is true that, in deciding that case, this court said, "Upon the death of Moore his estate vested in his heirs and his surviving wife, subject to the payment of his debts;" but evidently that was said in the light of the above-mentioned facts of that case, particularly those relating to homestead and exemptions, involving absence of pleading, proof, and verdict thereon, and upon the theory that all questions as to homestead or exemptions had been practically eliminated.
The estate was likewise insolvent in each of the following cases, which arose under earlier constitutional provisions: Green v. Crow, 17 Tex. 180; Reeves v. Petty, 44 Tex. 249; Horn v. Arnold, 52 Tex. 161; Scott v. Cunningham, 60 Tex. 566; Watson v. Rainey, 69 Tex. 319, 6 S. W. 840; Gaines v. Gaines, 4 Tex. Civ. App. 408, 23 S. W. 465. Plaintiffs in error, who appear here in the attitude of general outside creditors of said estate, contend that the decision of this court in Moore & Son v. Moore, 89 Tex. 29, 33 S. W. 217, is squarely in point upon the question before us, and should be regarded as conclusive of this issue; but to neither of those suggestions can we agree. That suit was brought in the district court for partition of the estate of a decedent, embracing certain lands and personal property; all being community property of his second marriage. Plaintiffs were the widow and son of decedent, and defendants were his child and grandchildren of a former marriage. The Court of Civil Appeals upheld the jurisdiction of the district court upon the theory that there were no outside creditors-plaintiff's suit for partition in that court amounting to a representation by them that there were no debts against the estate, and consesequently no necessity for administration through the probate court, and the allegation in the answer of the defendants being that there were no debts against the estate other than that which some of the defendants as serted in favor of themselves, which allegation of the defendants was not controverted by either pleading or evidence-and also held that, having thus acquired jurisdiction over the subject-matter, and to avoid a multiplicity of suits among the parties, the trial court properly proceeded to an adjustment of the equities of the parties as among themselves as joint or common owners of all the property, and to a final partition thereof. The widow, who was the sole such constituent of decedent's family who survived him, was one of the plaintiffs, as we have seen, who filed suit for partition of the property. There was no pleading to the effect that she was entitled to, or that there existed in fact, a homestead or other exempt property. The widow did not ask to have the homestead or other property set apart to her as exempt. As to homestead and other exempt prop- It is therefore necessary, in determining erty, the Court of Civil Appeals found that the issue in this case, to briefly consider, "there was no evidence in regard to it, and anew, various provisions of our existing state the verdict made no finding on the subject." | Constitution and statutes which bear upon it, Such being the state of the pleading and the in doing which we will be aided greatly by evidence with regard to homestead and exemptions, the Court of Civil Appeals treated as fundamental error the action of the trial court in setting apart to the widow a homestead and other property as exempt, there being no assignment of error thereon, and, in anticipation of another trial of that cause
There are various other Texas decisions which bear more or less upon the question which we are now considering; but diligent search has failed to reveal even a single case in this court, or in any of our eight Courts of Civil Appeals, in which the point here involved is shown to have been squarely presented by reason of the solvency of the estate, or expressly decided.
numerous former decisions construing them in cases of insolvent estates, and in some degree by decisions construing earlier statutes under previous Constitutions, as applied to insolvent estates.
By sections 50, 51, and 52 of article 16 of the present Constitution of Texas of 1876,
exempted from liability for all debts, with certain exceptions; and the course of its descent is indicated.
A rural homestead consists of "not more than two hundred acres of land, with the improvements thereon"; an urban homestead, of "lot or lots not to exceed in value five thousand dollars at the time of their designation as the homestead, without reference to the value of any improvements thereon." Section 51. See, also, R. S. 1911, art. 3786 (2396) (2336).
Such homestead is "protected from forced sale, for the payment of all debts except for the purchase money thereof, or a part of such purchase money, the taxes due thereon, or for work and material used thereon." Section 50. See, also, R. S. 1911, art. 7637 (5183).
It is provided that "on the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution." Section 52. This court has uniformly held that the sole purpose of the foregoing provisions of said section 52 was to change the rule of descent, as declared in Horn v. Arnold, 52 Tex. 164, under the Probate Act of 1848, and to make the rule of descent of homestead property thereafter uniform, regardless of whether the estate of the deceased father was solvent or insolvent. It did not deal with exemptions, or with rights of creators. Bonding Company v. Logan, supra, and cases cited.
In pursuance of the general design to protect the family homestead from forced sale, except as indicated above, a conception which had its origin in Texas, our Legislature has enacted various laws, including the following which were in force when the case at bar arose, and now remains operative:
Art. 3235. (1869) (1817)-"When a person dies, leaving a lawful will, all of his estate devised or bequeathed by such will shall vest immediately in the devisees or legatees; and all the estate of such person, not devised or bequeathed, shall vest immediately in his heirs at law; but all of such estate, whether devised or bequeathed or not, except such as may be exempted by law from the payment of debts,
* * of such testator or intestate; and, whenever a person dies intestate, all of his estate shall vest immediately in his heirs at law, but with the exceptions aforesaid shall still be liable and subject in their hands to the payment of the debts of the intestate; but, upon the issuance of letters testamentary or of administration upon any such estate, the executor or administrator shall have the right to the possession of the estate as it existed at the death of the testator or intestate, with the exception aforesaid; and it shall be the duty of such executor or administrator to recover possession of and hold such estate in trust to be disposed of in accordance with law." Act of August 9, 1876.
Art. 3413. (2046) (1993)—“At the first term of the court after an inventory, appraisement and list of claims have been returned, it shall be the duty of the court, by an order entered upon the minutes, to set apart for the use and benefit of the widow and minor children and un
of the deceased all such property of the estate as may be exempt from execution or forced sale by the Constitution and laws of the state, with the exception of any exemption of one year's supply of provisions." Id.
Art. 3414. (2047) (1994)-"In case there should not be among the effects of the deceased all or be the duty of the court to make a reasonable any of the specific articles so exempted, it shall allowance in lieu thereof, to be paid to such widow and children, or such of them as there may be, as hereinafter directed." Art. 3421. (2054) (2001)-"If, upon a final settlement of such estate, it shall appear that the same is solvent, the exempted property, except the homestead, which has been set apart to the widow or children, or both, together with any allowance that has been received by them in lieu thereof, shall be subject to partition and distribution among the heirs and distributees of such estate in like manner as the other property of the estate." Id.
Art. 3422. (2055) (2002)-"Should the estate, upon final settlement, prove to be insolvent, the title of the widow and children to all the property and allowances set apart or paid to them, under the provisions of this and of the preceding chapter, shall be absolute, and shall not be taken for any of the debts of the estate, except as hereinafter provided.'
Art. 3423. (2056) (2003)-"In ascertaining whether an estate is solvent or insolvent, the exempt property set apart to the widow or children, or the allowance in lieu thereof, and chapter, shall not be estimated or considered the allowance provided for in the preceding as assets of the estate." Id.
Art. 3424. (2057) (2004)—“The homestead shall not be partitioned among the heirs of the deceased during the lifetime of the widow, or so long as she may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same." Const. art. 16, § 52.
Art. 3425. (2058) (2005)-"When the widow dies or sells her interest in the homestead, or elects to no longer use or occupy the same as a homestead, and when the proper court no longer permits the guardian of the minor children to use and occupy the same as a homestead, it may be partitioned among the respective owners thereof in like manner as other property held in_common." Act Aug. 9, 1876.
Art. 3426. (2059) (2006)-"The homestead rights of the widow and children of deceased are the same whether the homestead be the separate property of the deceased or community property between the widow and the deceased, and the respective interests of such widow and children shall be the same in one case as in the other." Id.
Art. 3427. (2060) (2007)-"The homestead shall not be liable for the payment of any of the debts of the estate, except for the purchase money thereof, the taxes due thereon or for work and material used in constructing improvements thereon; and in this last case only when the work and material are contracted for in writing, with the consent of the wife, given in the same manner as required in making a sale and conveyance of the homestead." Const. art. 16, § 50.
Art. 3428. (2061) (2008)—"The exempted property, other than the homestead, or any allowance made in lieu thereof, shall be liable for the payment of the funeral expenses and the expenses of last sickness of deceased, when presented within the time prescribed therefor; but such property shall not be liable for any other debts of the estate." Act of Aug. 9, 1876.
Several of the above-quoted articles were amendments of, or based upon, statutes enact