Clift v. Kaufman & Runge

Citations

• 60 Tex. 64
• 1883 Tex. LEXIS 263

Syllabus

<p>1. Homestead.— In an application by the widow, pending administration on the estate of her deceased husband, for an allowance in lieu of homestead, it was shown that up to death of deceased he lived with his family on lots 6 and 7, in a town. He carried on his business as a merchant in a storehouse on lot 4, in which he owned an undivided interest of five feet in the front thereof, his children by a former marriage owning the remainder of that lot. Lot No. 6 was the exclusive property of the children of the deceased by a former marriage. One-half of lot No. 7 was also owned exclusively by the children of the first marriage, and the other half was owned jointly by the children of both marriages. Held,</p> <p>(1) An allowance should have been granted the surviving widow and children, in lieu of the homestead.</p> <p>(2) It was immaterial to the issue to inquire what separate property might be owned by the children of the first marriage, or held by them as property once constituting the estate of the first wife.</p> <p>(8) The homestead allowance, when set aside, must be taken alone from the estate of the deceased husband or wife.</p> <p>(4) Considering the condition of the title, both of the business house and family residence, there was no such homestead as could be set apart to the widow and children.</p> <p>(5) The fact that a step-child, ward or niece, who for the time being is a member of the widow’s family, owns a home in which all live, is no answer to her demand for an allowance in lieu of homestead.</p> <p>(G) The cessation of business on the death of the husband, which he had conducted on lot 4, did not divest his undivided interest of five feet of its protection from forced sale by reason of its homestead character. He being insolvent, his title and interest in it passed at once to and vested in his heirs. This case, in this respect, distinguished from Shryock & Rowland v. Latimer, 57 Tex., 674.</p> <p>2. Distinguished.— This case distinguished from Ball