HENRY, Associate Justice.
T. M. Hoffman, Sr., was married to C. A. Hoffman. They had a number of children, owned a community estate, including a residence homestead in the town of Kaufman, and owed community debts when the wife, C. A. Hoffman, died.
Shortly after his first wife’s death T. M. Hoffman, Sr., married for his second wife Belle Hoffman, the appellant.
Before the debts contracted during the first marriage were paid T. M. Hoffman, Sr., died without having contracted any new debt, so far as the record shows, after his first wife’s death.
During his second marriage he lived in the house occupied by him during his first one.
His youngest child by his first wife was, according to the evidence, a .son aged “about” twenty-one years at the time of his father’s death. He [191]*191is not shown to have been then a member of his father’s family. T. M. Hoffman, Sr., had no child by his second marriage. He. acquired about $150 worth of personal property during his second marriage.' With the exception, of that all of the property owned by him at his decease was acquired during and was community of his first marriage.
After his first wife’s death he paid to one of her sons his interest in her estate, and received from him a release for it. He made no settlement with her remaining children.
After the death of T. M. Hoffman, Sr., administration upon his estate, was opened. His children by his first wife took his household effects and divided them between themselves after the death of their father.
An encumbrance that existed upon the residence homestead was paid off by his administrator.
The evidence indicates that the property of the estate will not be sufficient to pay the debts and provide for allowances to the widow in lieu of exempt property without diminishing what the children would have received from their mother’s half of the estate.
If the statutory exemptions and allowances are made to the widow, then either the creditors must receive less than is due them or the children must receive less from their mother’s half of the estate or of their half of the remainder after the debts are paid, by reason of the allowances made to the second wife.
On the other hand, if the creditors are paid in full and the children of the first marriage are given their mother’s half of what remains, it appears that there will not be enough left of the estate to make up the statutory allowances to the widow.
Belle Hoff man, the widow, made application to -the County Court therefor, and that court made an order in her favor directing the administrator to pay to her one of the first money that came into his hands belonging to the estate the sum of $1250 in lieu of a homestead, and $450 in lieu of exempt property not on hand in kind.
The cause was carried to the District Court by a writ of certiorari, sued out by the children of the first wife, and upon a trial in that court the same amounts were allowed to the widow, to be paid, however, only after the community debts of the first marriage shall be all paid, and out of the one-lialf of the surplus remaining after the discharge of such debts.
The effect of the judgment of the County Court was to give to the widow’s allowance precedence over both the creditors and the heirs of the first wife, without adjusting the claims of the latter as between themselves.
The result of the judgment of the District Court was to give the claims of the creditors precedence over both the widow’s allowances and the heirs of the first wife, and as between the latter to postpone the widow in favor of the heirs.
The widow appeals from this judgment.
[192]*192T. M. Hoffman, Sr., when he died left no unmarried daughter remaining with his family nor minor child, and hence there was no constituent of his family entitled to the homestead allowance or the other exemptions except his widow.
The title to the residence homestead was one-half in the children of Hoffman as heirs of their mother.
In that state of the case, and Because there was no complete homestead that could be assigned to her, it was proper that an allowance should be made to the widow out of her husband's interest in the estate in lieu of a homestead. Clift v. Kaufman & Runge, 60 Texas, 64.
The one-half interest of T. M. Huffman, Sr., in the household goods that were on hand at the date of his death went by the statute to his widow as exempt property, without an order setting it apart to her.
Such one-half interest having become the widow's property upon the death of her husband, no allowance in lieu of it could be subsequently made to the detriment of the creditors.
As her husband's share of such property belonged to her from the time of his death, it was at her own risk, and if it was destroyed or taken from her by a trespasser she and not the creditors must bear its loss.
After deducting the husband's half of the household goods that were on hand at his death, it was the duty of the court to make to the widow an allowance out of her husband's interest in the estate in lieu'of such articles of exempt personal property as were not found to exist in kind.
In making such allowance care must be taken that the interest of the children, who were not settled with by their father, in their mother’s share of the estate is not diminished thereby, either directly or indirectly.
In the case of Redding v. Boyd, 64 Texas, 498, where the first wife had died leaving children, an estate, and community debts, and'where the husband had married a second time and then died leaving a widow and an insolvent estate, this .court, through Chief Justice Willie, speaking of the payments of debts contracted by the husband subsequent to the death of his wife, said that they were “ not chargeable against the community interest of his first wife;” and referring to the interest of the first wife in the community estate he said, “it descended to her children subject only to the community debts of that marriage and expenses incurred in its preservation, safe keeping, and administration;” and with regard to the contention of the second wife or widow “that Chambers's estate being insolvent, the exemptions allowed by law to his widow of the second marriage and his children (by her) must come out of the community estate of himself and his first wife before the heirs of that wife can claim any portion of her community estate,” he said: “This positiomis obviously incorrect. It .is of no importance that there will not be left in the estate of Chambers, the husband, sufficient to pay an allowance in lieu of exempt property. That allowance must be raised from'the estate of the de[193]*193cedent. If there is not enough in the estate to provide such an allowance for the widow and children, the 'balance can not be taken from another estate. The community interest of the wife does not contribute towards it, though there be no children besides the heirs of. that interest; much less can it be taxed with an allowance to the widow and child of a subsequent marriage.” To the same effect is Gilliam v. Null, 58 Texas, 299; Pressly’s Heirs v. Robinson, 57 Texas, 453; Putnam v. Young, 57 Texas, 461; King v. Gilleland, 60 Texas, 271.
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HENRY, Associate Justice.
T. M. Hoffman, Sr., was married to C. A. Hoffman. They had a number of children, owned a community estate, including a residence homestead in the town of Kaufman, and owed community debts when the wife, C. A. Hoffman, died.
Shortly after his first wife’s death T. M. Hoffman, Sr., married for his second wife Belle Hoffman, the appellant.
Before the debts contracted during the first marriage were paid T. M. Hoffman, Sr., died without having contracted any new debt, so far as the record shows, after his first wife’s death.
During his second marriage he lived in the house occupied by him during his first one.
His youngest child by his first wife was, according to the evidence, a .son aged “about” twenty-one years at the time of his father’s death. He [191]*191is not shown to have been then a member of his father’s family. T. M. Hoffman, Sr., had no child by his second marriage. He. acquired about $150 worth of personal property during his second marriage.' With the exception, of that all of the property owned by him at his decease was acquired during and was community of his first marriage.
After his first wife’s death he paid to one of her sons his interest in her estate, and received from him a release for it. He made no settlement with her remaining children.
After the death of T. M. Hoffman, Sr., administration upon his estate, was opened. His children by his first wife took his household effects and divided them between themselves after the death of their father.
An encumbrance that existed upon the residence homestead was paid off by his administrator.
The evidence indicates that the property of the estate will not be sufficient to pay the debts and provide for allowances to the widow in lieu of exempt property without diminishing what the children would have received from their mother’s half of the estate.
If the statutory exemptions and allowances are made to the widow, then either the creditors must receive less than is due them or the children must receive less from their mother’s half of the estate or of their half of the remainder after the debts are paid, by reason of the allowances made to the second wife.
On the other hand, if the creditors are paid in full and the children of the first marriage are given their mother’s half of what remains, it appears that there will not be enough left of the estate to make up the statutory allowances to the widow.
Belle Hoff man, the widow, made application to -the County Court therefor, and that court made an order in her favor directing the administrator to pay to her one of the first money that came into his hands belonging to the estate the sum of $1250 in lieu of a homestead, and $450 in lieu of exempt property not on hand in kind.
The cause was carried to the District Court by a writ of certiorari, sued out by the children of the first wife, and upon a trial in that court the same amounts were allowed to the widow, to be paid, however, only after the community debts of the first marriage shall be all paid, and out of the one-lialf of the surplus remaining after the discharge of such debts.
The effect of the judgment of the County Court was to give to the widow’s allowance precedence over both the creditors and the heirs of the first wife, without adjusting the claims of the latter as between themselves.
The result of the judgment of the District Court was to give the claims of the creditors precedence over both the widow’s allowances and the heirs of the first wife, and as between the latter to postpone the widow in favor of the heirs.
The widow appeals from this judgment.
[192]*192T. M. Hoffman, Sr., when he died left no unmarried daughter remaining with his family nor minor child, and hence there was no constituent of his family entitled to the homestead allowance or the other exemptions except his widow.
The title to the residence homestead was one-half in the children of Hoffman as heirs of their mother.
In that state of the case, and Because there was no complete homestead that could be assigned to her, it was proper that an allowance should be made to the widow out of her husband's interest in the estate in lieu of a homestead. Clift v. Kaufman & Runge, 60 Texas, 64.
The one-half interest of T. M. Huffman, Sr., in the household goods that were on hand at the date of his death went by the statute to his widow as exempt property, without an order setting it apart to her.
Such one-half interest having become the widow's property upon the death of her husband, no allowance in lieu of it could be subsequently made to the detriment of the creditors.
As her husband's share of such property belonged to her from the time of his death, it was at her own risk, and if it was destroyed or taken from her by a trespasser she and not the creditors must bear its loss.
After deducting the husband's half of the household goods that were on hand at his death, it was the duty of the court to make to the widow an allowance out of her husband's interest in the estate in lieu'of such articles of exempt personal property as were not found to exist in kind.
In making such allowance care must be taken that the interest of the children, who were not settled with by their father, in their mother’s share of the estate is not diminished thereby, either directly or indirectly.
In the case of Redding v. Boyd, 64 Texas, 498, where the first wife had died leaving children, an estate, and community debts, and'where the husband had married a second time and then died leaving a widow and an insolvent estate, this .court, through Chief Justice Willie, speaking of the payments of debts contracted by the husband subsequent to the death of his wife, said that they were “ not chargeable against the community interest of his first wife;” and referring to the interest of the first wife in the community estate he said, “it descended to her children subject only to the community debts of that marriage and expenses incurred in its preservation, safe keeping, and administration;” and with regard to the contention of the second wife or widow “that Chambers's estate being insolvent, the exemptions allowed by law to his widow of the second marriage and his children (by her) must come out of the community estate of himself and his first wife before the heirs of that wife can claim any portion of her community estate,” he said: “This positiomis obviously incorrect. It .is of no importance that there will not be left in the estate of Chambers, the husband, sufficient to pay an allowance in lieu of exempt property. That allowance must be raised from'the estate of the de[193]*193cedent. If there is not enough in the estate to provide such an allowance for the widow and children, the 'balance can not be taken from another estate. The community interest of the wife does not contribute towards it, though there be no children besides the heirs of. that interest; much less can it be taxed with an allowance to the widow and child of a subsequent marriage.” To the same effect is Gilliam v. Null, 58 Texas, 299; Pressly’s Heirs v. Robinson, 57 Texas, 453; Putnam v. Young, 57 Texas, 461; King v. Gilleland, 60 Texas, 271.
The above quotations will serve to show beyond dispute that the interest of the children of the first marriage in their mother’s share of the community property can not be made to contribute to the allowances of the widow of a second marriage.
It is equally true that the widow must have her full allowances for exempt property not existing in kind if the husband’s interest in the estate is of sufficient value to satisfy them.
■ The widow’s right to her allowances has precedence over the creditors so far as her husband’s interest in the estate will extend. The whole amount of her allowances for exempt property must be paid before the creditors can receive any amount from her husband’s share of the estate.
The widow can resort only to her husband’s share of the community estate. The children can resort, as against the widow’s claim for exemptions and allowances, only to their mother’s share. The creditors may-resort to both shares, with the difference that as to the first wife’s share their claims are superior to those of her heirs, while as to the husband’s share they are inferior to the widow’s right to the allowances. The relative rights of the respective parties may be stated as follows: When not affected by a subsequent marriage the claims of the creditors must be fully discharged before the. heirs of the first wife can receive anything. The widow must have her allowances for exempt property before the creditors can be paid anything out of her husband’s share of the estate.
The interest of .the heirs of the first wife in the estate must not be diminished to create or help to create an allowance for the widow or second wife. Under these rules the-heirs of the first wife will take nothing when the amount of the indebtedness of the community, including the expenses of its administration, is greater than'the entire value of the estate.
The creditors and the widow will each get something when there is any estate, although in each instance it may be less than their respective claims. When the value of the estate is greater than the indebtedness and expenses of administration combined, that result, in the case of the widow, can only be produced by the fact that her husband’s entire interest in the estate does not amount to sufficient in value to satisfy her claim; and in the case of the creditors it will be produced solely by the fact that the whole or a part of the husband’s share of the property is taken away from them for the benefit of the widow. In such a case the creditors can not [194]*194resort to the half of the excess above the whole amount of indebtedness that went to the first wife’s heirs for the purpose of making up their loss by reason of the widow having taken from them so much of the husband’s share of the estate. To do that' would be to make the estate of the first wife contribute indirectly to the second wife’s allowances.
It is plain that in the case stated the only necessity for a resort to be made to the first wife’s half of the property by the creditors is created by the allowances made to the second wife.
In every case where the value of the community estate of the husband and his first wife is greater than the debts and expenses, but at the same time less than the debts, expenses, and a second wife’s allowances, either the children of the first wife must lose part of a property inherited by them from their mother, on account of allowances made to the widow of the husband’s second marriage, or the creditors must receive less than their debts and less than they would have received except for the necessity of making such allowances.
We merely repeat when we say that the distinction is just what the law makes. The general rule in this State is that debts are created with the understanding and obligation that they exist in subordination to and shall yield in favor of the widow’s allowances for exemptions. It is equally well settled that the estate of the first wife shall not be taxed directly or indirectly to provide such an allowance.
When the heirs of the first wife receive less of the community estate than they would have received if no allowance had been made to the widow of a second marriage, can it then be said that the first wife’s estate has not been so taxed?
The correctness of these conclusions is not affected by the undisputed fact that when there is no widow of a second marriage the children of the first wife can not take and hold any of the estate so long as there remains an unpaid debt. There is no original right for the heirs of the first wife, simply as such, to take and hold a dollar’s worth of her estate while there exists an unpaid debt. But the heirs of the mother will be found in rightful possession of some portion of her estate while there are still unsatisfied creditors when such unsatisfied creditors exist only because of and to the. extent only that the community estate has been reduced by allowances made to the widow of the second marriage.
It may be necessary in some administrations, and it seems that it may become proper in this one, to ascertain the exact condition and valuation of the estate before a distribution of it can be made between the conflicting claimants.
While it will not probably become often necessary to postpone the payment of the allowances to the widow and minor children to ascertain what amount can be paid them, and while postponement of the payment of such allowances should never be made Avhen it can be properly avoided, [195]*195still it should bo done when necessary to ascertain the true condition of the estate in order to determine how much of the allowance can be lawfully paid. In such cases even partial payments may be made, as it can be ascertained with certainty that any specified portion of the allowance may be lawfully paid.
For the purpose of ascertaining how to make as well as to actually make distribution, the land and other property belonging to the estate' may be sold when the condition of the estate and the nature of the claims against it demand that remedy. In this case the residence of the deceased not being in a condition as to the title to be treated as a homestead, it should he sold like other unexempted property. The allowance made to the widow in lieu of a homestead becomes a substitute for the homestead.
When, by sales of the property and collections, the exact value of the estate shall have been ascertained, it can without difficulty he divided according to the rules above suggested.
In the first place, if there is an excess of value above the whole amount of debts and expenses of administration, allot to each of the heirs of the first wife who were not settled with by the husband his or her proportionate part of one-half of such excess.
In the second place, pay to the widow the full amount of her allowances if it can be done with the entire remainder of the estate.
And in the third place, pay the creditors out of what remains, according to their respective priorities.
If anything remains after the three classes are provided for, it must be distributed to the husband’s heirs according to the statute of descent and distribution.
The foregoing general directions are subject to some qualifications in this case, and in others when the same or like conditions may exist. When there is a lien creditor with rights superior to the claims of other parties, such rights will of course be enforced against the property subject thereto, and the surplus only, if any results, should be administered in the manner here suggested.
The small amount of community property that was acquired during the time of the second marriage, or its net proceeds, should be paid to the widow as part of her allowance, reducing the sum to be otherwise paid her by that amount. One-half of the value of the household goods on hand at the death of the husband should be subtracted from the widow’s allowance in lieu of exempt personal property, and the value thereof should be deducted proportionately from the shares of the heirs of the first wife who participated in taking away such property, and paid to the widow.
. In estimating the debts of the estate for the purpose of arriving at the interest of the heirs of the first wife, no debt contracted subsequent to [196]*196her death should be considered except such as have been incurred in the preservation, settlement, and administration of the estate.
The judgment is reversed and the cause is remanded. ■
Reversed and remanded.
Delivered December 12, 1890.