Moons, Associate Justice.
With, whatever force of rear son those who have sought to maintain a different conclusion have endeavored to impress their views, and however unsatisfactorily, as it may seem to them, their arguments may have been met, it must be admitted that it is now finally and definitely settled by this court, that a deed of trust to secure the payment of a debt does not operate as an absolute transfer of the property to which it refers, to the trastee, upon the trust mentioned in the deed, defeasible upon the conditions therein stipulated; but that‘such instrument is, in legal effect, a mere mortgage, with a power to sell. And though the death of the mortgagor does not, on general principles, revoke this power, yet its exercise by the trustee would be inconsistent and in conflict with our statutes governing the settlement of estates of deceased persons. It cannot, therefore, be executed by the trustee after the death of the constituent. And whatever rights may be secured to the creditor by such deed, they can only be enforced after the death of the debtor, through and by aid of the court. It naturally, if not inevitably follows, that such deed, instead of operating as an absolute and unconditional security for the payment of the debt for which it purports to be given, has this effect only during the life of the debtor. And after his death it only secures the creditor priority over such claims against the debtor’s estate, as by the statute it is entitled to in the due course of administration.
And it is not now open to controversy that funeral expenses, expenses of last sickness, expenses of administration, and those incurred in the preservation and management of the estate, as well as the allowances authorized to be made [370]*370to the widow and children in lieu of a homestead, and other property exempt from forced sale, where such property does not exist in kind, have preference over specific liens created in the lifetime of the decedent, except where such lien is a security for the purchase-money of the property to which it is attached.
Whether the fact that the wife may have joined her husband in creating the lien (I refer, of course, to cases under the former law) will bar her from claiming such allowance in preference to the creditor, has not, so far as I am awai’e, been directly passed upon by the court. And it will he time enough to consider it when it arises. Here, although the wife joined the husband in tire deed of trust, as the power of the trustee is revoked, the property can only be now sold by an order of the court. But this would be a forced sale; and if the property is the homestead, the court is forbidden by the Constitution from having it thus sold; and thereby, if the estate is insolvent, the woman is relieved from a contract which was absolute and binding upon her while her husband was living, hut takes an absolute title to the property, notwithstanding the incumbrance with which she has freely and voluntarily joined her husband in charging it.
• It follows, as a necessary conclusion from these propositions, that the com't did not err in holding that the deed of trust to French afforded no valid ground for rejecting appellee’s application to set apart to her the homestead. (Robertson v. Paul, 16 Tex., 472; Buchanan v. Monroe, 22 Tex., 537; Giddings v. Crosby, 24 Tex., 295; Caton v. Mosely, 25 Tex., 374; Dwight v. Overton, 35 Tex., 390; Donley v. Cundiff, 35 Tex., 741; King v. Cassidy, 36 Tex., 531; Gurley v. Ward, 37 Tex., 20; Petty v. Barrett, 37 Tex., 84; Reeves v. Petty, 44 Tex., 249; Mayman v. Reviere, 47 Tex., 357, overruled during the present term of the court.)
But although the superior right of the widow to the homestead over that of the creditor, by virtue of- the specific lien which she had joined her husband in charging upon it, can[371]*371not be denied, still the record does not, in our opinion, establish, with sufficient certainty to support the judgment, the fact that all the property included in the decree was a part and parcel of the homestead at the time of the decedent’s death.
When an application is made to the court to set apart the homestead for the use of the widow and children, it is unquestionably incumbent upon the applicant to show, prima facie at least, that it is the duty of the court to make the decree asked for. Unquestionably, no particular formality or strict rules of proceeding in such application is required, or has been usually observed; but where a party seeks to withdraw from the hands of the administrator, and the control of the court, a part of the property of the estate, it should be made to appear to the • satisfaction of the court, from the inventory, or otherwise, not only that the party for whom the order is asked is entitled to it, but also that the particular property asked to be set aside is the character of property to which the party is thus entitled. The order, when made, is a judgment of the court, and binding upon all parties interested in the estate, whether contesting it or not, until revoked or set aside in some legitimate mode provided by law. It would, therefore, seem that the administrator, as the general representative of the estate, should be a party to, or have cognizance of the application.
The extent, or definite boundaries of the homestead, should have been more definitely shown than was done in this application, if objection had been made. And although it may not be necessary for the applicant to show the value of the property constituting the homestead, unless where opposition to an order to set it apart is made upon the ground that it is in excess of the constitutional exemption, yet, unquestionably, in many cases, this may be a matter of vital importance ; and the fact that the property claimed is in truth the homestead, should certainly be shown before the order setting it apart should be made.
[372]*372The County Court refused the application, and, so far as we can see from the transcript, there was no evidence before the District Court to show that the property set aside for appellee was in fact the homestead, except its description in the trust deed to French, made some years before the husband’s death. The inference to be drawn from the deed would seem to be, at the date of its execution, that the grantors did not regard the lot designated as the garden, as forming any part of their homestead. And it certainly cannot be said, because it had been used for and spoken of by the grantors in the deed as their garden, that it is a necessary inference or conclusion of law that it was a part of their homestead: Nor are we prepared to say, if such was clearly their intention, that the husband and wife might not under the law, as construed at the date of-this deed, have curtailed their homestead, and applied a portion of it to other purposes, without absolutely parting with the title; and if they should do so, bona fide, that the wife would not be precluded, if they still retained the homestead as they themselves had limited and defined it, from claiming that which had been thus severed from it, as still forming a part of it. But if not, certainly the admissions in their deed, that a designated lot separated by a street from the premises on which they lived, formed no part of their homestead, would be evidence tending to prove that such lot was in truth no part of it.
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Moons, Associate Justice.
With, whatever force of rear son those who have sought to maintain a different conclusion have endeavored to impress their views, and however unsatisfactorily, as it may seem to them, their arguments may have been met, it must be admitted that it is now finally and definitely settled by this court, that a deed of trust to secure the payment of a debt does not operate as an absolute transfer of the property to which it refers, to the trastee, upon the trust mentioned in the deed, defeasible upon the conditions therein stipulated; but that‘such instrument is, in legal effect, a mere mortgage, with a power to sell. And though the death of the mortgagor does not, on general principles, revoke this power, yet its exercise by the trustee would be inconsistent and in conflict with our statutes governing the settlement of estates of deceased persons. It cannot, therefore, be executed by the trustee after the death of the constituent. And whatever rights may be secured to the creditor by such deed, they can only be enforced after the death of the debtor, through and by aid of the court. It naturally, if not inevitably follows, that such deed, instead of operating as an absolute and unconditional security for the payment of the debt for which it purports to be given, has this effect only during the life of the debtor. And after his death it only secures the creditor priority over such claims against the debtor’s estate, as by the statute it is entitled to in the due course of administration.
And it is not now open to controversy that funeral expenses, expenses of last sickness, expenses of administration, and those incurred in the preservation and management of the estate, as well as the allowances authorized to be made [370]*370to the widow and children in lieu of a homestead, and other property exempt from forced sale, where such property does not exist in kind, have preference over specific liens created in the lifetime of the decedent, except where such lien is a security for the purchase-money of the property to which it is attached.
Whether the fact that the wife may have joined her husband in creating the lien (I refer, of course, to cases under the former law) will bar her from claiming such allowance in preference to the creditor, has not, so far as I am awai’e, been directly passed upon by the court. And it will he time enough to consider it when it arises. Here, although the wife joined the husband in tire deed of trust, as the power of the trustee is revoked, the property can only be now sold by an order of the court. But this would be a forced sale; and if the property is the homestead, the court is forbidden by the Constitution from having it thus sold; and thereby, if the estate is insolvent, the woman is relieved from a contract which was absolute and binding upon her while her husband was living, hut takes an absolute title to the property, notwithstanding the incumbrance with which she has freely and voluntarily joined her husband in charging it.
• It follows, as a necessary conclusion from these propositions, that the com't did not err in holding that the deed of trust to French afforded no valid ground for rejecting appellee’s application to set apart to her the homestead. (Robertson v. Paul, 16 Tex., 472; Buchanan v. Monroe, 22 Tex., 537; Giddings v. Crosby, 24 Tex., 295; Caton v. Mosely, 25 Tex., 374; Dwight v. Overton, 35 Tex., 390; Donley v. Cundiff, 35 Tex., 741; King v. Cassidy, 36 Tex., 531; Gurley v. Ward, 37 Tex., 20; Petty v. Barrett, 37 Tex., 84; Reeves v. Petty, 44 Tex., 249; Mayman v. Reviere, 47 Tex., 357, overruled during the present term of the court.)
But although the superior right of the widow to the homestead over that of the creditor, by virtue of- the specific lien which she had joined her husband in charging upon it, can[371]*371not be denied, still the record does not, in our opinion, establish, with sufficient certainty to support the judgment, the fact that all the property included in the decree was a part and parcel of the homestead at the time of the decedent’s death.
When an application is made to the court to set apart the homestead for the use of the widow and children, it is unquestionably incumbent upon the applicant to show, prima facie at least, that it is the duty of the court to make the decree asked for. Unquestionably, no particular formality or strict rules of proceeding in such application is required, or has been usually observed; but where a party seeks to withdraw from the hands of the administrator, and the control of the court, a part of the property of the estate, it should be made to appear to the • satisfaction of the court, from the inventory, or otherwise, not only that the party for whom the order is asked is entitled to it, but also that the particular property asked to be set aside is the character of property to which the party is thus entitled. The order, when made, is a judgment of the court, and binding upon all parties interested in the estate, whether contesting it or not, until revoked or set aside in some legitimate mode provided by law. It would, therefore, seem that the administrator, as the general representative of the estate, should be a party to, or have cognizance of the application.
The extent, or definite boundaries of the homestead, should have been more definitely shown than was done in this application, if objection had been made. And although it may not be necessary for the applicant to show the value of the property constituting the homestead, unless where opposition to an order to set it apart is made upon the ground that it is in excess of the constitutional exemption, yet, unquestionably, in many cases, this may be a matter of vital importance ; and the fact that the property claimed is in truth the homestead, should certainly be shown before the order setting it apart should be made.
[372]*372The County Court refused the application, and, so far as we can see from the transcript, there was no evidence before the District Court to show that the property set aside for appellee was in fact the homestead, except its description in the trust deed to French, made some years before the husband’s death. The inference to be drawn from the deed would seem to be, at the date of its execution, that the grantors did not regard the lot designated as the garden, as forming any part of their homestead. And it certainly cannot be said, because it had been used for and spoken of by the grantors in the deed as their garden, that it is a necessary inference or conclusion of law that it was a part of their homestead: Nor are we prepared to say, if such was clearly their intention, that the husband and wife might not under the law, as construed at the date of-this deed, have curtailed their homestead, and applied a portion of it to other purposes, without absolutely parting with the title; and if they should do so, bona fide, that the wife would not be precluded, if they still retained the homestead as they themselves had limited and defined it, from claiming that which had been thus severed from it, as still forming a part of it. But if not, certainly the admissions in their deed, that a designated lot separated by a street from the premises on which they lived, formed no part of their homestead, would be evidence tending to prove that such lot was in truth no part of it. And although the deed upon which appellant relies to repel appellee’s right to a homestead may not be so clear and unequivocal as to warrant the exclusion of parol testimony to prove that the garden lot was in fact a part and parcel of their homestead, at the date of said deed, and was not used and treated as a part and parcel of it at the time of the husband’s death, it evidently warrants this inference, in the absence of explanatory or countervailing evidence, that it was so treated or regarded by the grantors. The court, therefore, erred in setting it apart to appellee as a part of the [373]*373homestead, in the absence of any testimony whatever, so far as we can see in the record, to support her application.
The error into which the court fell resulted, in all probar bility, as it seems from the statement of facts, from its attention being exclusively attracted to appellant’s claim to have the homestead sold for the satisfaction of his debt; while the essential question in the case before the court was, whether appellee had established her right to an allowance of the homestead, and, if so, what was its extent or boundary.
The court also erred in dfecreeing the cancellation of the trust deed. This was altogether unnecessary to secure appellee in her homestead rights; and there was no pleading calling for or warranting the action of the court in this particular.
The judgment is reversed and the cause remanded.
Reversed and remanded.