BROWN, Associate Justice.
-By the death of her husband, Mrs. Sarah B. Putman was, in 1859, left a widow with a number of children, among them, a son, J. A. B. Putman, and a minor daughter, Stella Putman, now Mrs. Dinsmore, one of the defendants in error. Mrs. Putman continued a widow until her death in July, 1895; she had no homestead of her own at any time, and she and her minor daughter lived with and were supported by J. A. B,. Putman, who was never married. The son was in the Confederate army from 1862 until 1865. After his return, he, with his mother and minor sister, lived with another sister for a short time, after which J. A. B. Putman established his home in the town of Tarrant, Hopkins County, Texas, where he resided with his mother and sister Stella until the year 1870, when he bought the lot in Sulphur Springs now in controversy and built a house
and outbuildings on it in about the year 1872. He removed from the town of Tarrant to Sulphur Springs, taking his mother and sister with him, carrying the household and kitchen furniture, which all belonged to him. From time to time, additions were made to the dwelling-house and the household and kitchen furniture was replenished as it became necessary. He supported his mother and sister. They had no means of their own and relied upon him. Mrs. Putman had another son and a daughter. Some years before J. A. B. Putman died, his sister Stella married J. H. Dinsmore, and she and her husband resided in the house with her brother a part of the time; after the death of J. A. B. Putman, which occurred in Januarj1, 1895, Mrs. Dinsmore and her husband resided with her mother. The homestead property in controversy was at no time worth a sum exceeding $5000. J. A. B. Putman was a practicing lawyer during all of the time that he resided there and up to the time of his death, and the library and office furniture in controversy belonged to him and were used in connection with the practice of his profession. After the death of J. A. B. Putman, his mother died in July 1895. She resided, from the death of her son to the date of her own death, on the property in question. J. A. B. Putman made a will in which he gave his real estate to his mother for her life, remainder to Mrs. Dinsmore; also to his mother absolutely the household and kitchen furniture; he bequeathed his law library and some other personal effects to J. H. Dinsmore. The will was duly probated in Hopkins County.
Mrs. Sarah E. Putman left a will in which she devised all of her real estate to her daughter, Mrs. Dinsmore. The will was duly probated in Hopkins County.
During the time that Mrs. Putman resided with her son, J. A. B. Putman, now deceased, she performed all of the duties of a matron, keeping and caring for the house of a family, and he provided for his mother and sister as the head of a family would for his own family of wife and children, if they had been such.
B. T. Robertson was appointed administrator of the estate of J. A. B. Putman and Mrs. Mary Roots presented her claim against the estate, which was allowed and classed as a fourth-class claim. The estate proved to be insolvent and all of the property, except that which is here in controversy, has been sold and all of the debts of the first, second, and third class have been discharged. Mrs. Roots made an application in the probate court of Hopkins County to have the property subjected to the payment of her claim, which was refused by that court and appeal taken to the District Court, which resulted in a like judgment. The Court of Civil Appeals affirmed the judgment of the District Court.
If we concede, for the sake of argument, that J. A. B. Putman and his mother, while living together, constituted' a family within the meaning of article 16, section 50, of the Constitution, so that the exemption expressed in that section would apply to the head of the family in his life, still the mother can not hold the homestead after the death of her
son, because she can not inherit the exemption which was accorded to him and does not come within the terms of section
52
of article 16 of the Constitution, nor within the provisions of article 2046 of the Revised Statutes.
The language, “the homestead of a family shall be and is hereby protected from forced sale for the payment of debts/-' etc., found in the fiftieth section of article 16 of our present Constitution, is practically the same as that embraced in the Constitution of 1845 on the same subject, and has been so expressed in each subsequent Constitution. In the case of Sampson & Keene v. Williamson, 6 Texas, 110, the term “forced sale” was by the court defined as follows: “A forced sale has been defined to be a sale made at the time and in the manner prescribed by law, in virtue of an execution issued on a judgment already rendered by a court of competent jurisdiction; or, in other words, a forced sale is one which is made under the process of the court and in the mode prescribed by law.” This was the recognized meaning of the Avords “forced sale” when embodied in the present Constitution and they were eAddently understood and used in that sense by the members of the convention, for they employed the following clear and explicit language to qualify and limit the definition as applied to deeds of trust upon the homestead: “No mortgage, trust deed, or other lien on the homestead shall ever be valid except for the purchase money therefor or improvements made thereon as hereinbefore provided, AAdiether such mortgage or trust deed or other lien shall have been created by the husband alone or together Avith his Avife, and all pretended sales of the homestead involving any condition of defeasance shall be void.” This language shows that attention Avas called to the - definition given to “forced sale.” The sale by deed of trust, excluded by the interpretation of the court from the exemption, is prohibited by this provision, but the language “forced sale” was readopted as construed. The exemption expressed in section 50 applies to property while the head of the family is living, but furnishes no rule for its disposition after his death. Givens v. Hudson, 64 Texas, 473; Zwernemann v. Von Rosenberg, 76 Texas, 525. In the last named case, Judge Gaines, speaking for the court, said: “In the previous Constitution of the State, the disposition of the homestead after the death of the owner Avas left Avholly to the Avisdom of the Legislature. It is so, also, in the present Constitution, except as to the manner of its descent and the use reserved to the sundving spoxise and the minor children.”
It has been freqiAently and uniformly held in this State that the homestead exemption does not descend to heirs, but they take the property, under the statute and the Constitution, exempted from the debts of the ancestor, not because it was exempted in his hands, but because they come Avithin the class of persons named in the Constitution and the law. In the case of Givens v. Hudson, cited above, Judge Stayton said: “The thing is not exempted to the child or widow because it was exempted to the father or husband, who Avas the head of the family,
but because the child or widow was and remained a constituent of the family.”
Section
52
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BROWN, Associate Justice.
-By the death of her husband, Mrs. Sarah B. Putman was, in 1859, left a widow with a number of children, among them, a son, J. A. B. Putman, and a minor daughter, Stella Putman, now Mrs. Dinsmore, one of the defendants in error. Mrs. Putman continued a widow until her death in July, 1895; she had no homestead of her own at any time, and she and her minor daughter lived with and were supported by J. A. B,. Putman, who was never married. The son was in the Confederate army from 1862 until 1865. After his return, he, with his mother and minor sister, lived with another sister for a short time, after which J. A. B. Putman established his home in the town of Tarrant, Hopkins County, Texas, where he resided with his mother and sister Stella until the year 1870, when he bought the lot in Sulphur Springs now in controversy and built a house
and outbuildings on it in about the year 1872. He removed from the town of Tarrant to Sulphur Springs, taking his mother and sister with him, carrying the household and kitchen furniture, which all belonged to him. From time to time, additions were made to the dwelling-house and the household and kitchen furniture was replenished as it became necessary. He supported his mother and sister. They had no means of their own and relied upon him. Mrs. Putman had another son and a daughter. Some years before J. A. B. Putman died, his sister Stella married J. H. Dinsmore, and she and her husband resided in the house with her brother a part of the time; after the death of J. A. B. Putman, which occurred in Januarj1, 1895, Mrs. Dinsmore and her husband resided with her mother. The homestead property in controversy was at no time worth a sum exceeding $5000. J. A. B. Putman was a practicing lawyer during all of the time that he resided there and up to the time of his death, and the library and office furniture in controversy belonged to him and were used in connection with the practice of his profession. After the death of J. A. B. Putman, his mother died in July 1895. She resided, from the death of her son to the date of her own death, on the property in question. J. A. B. Putman made a will in which he gave his real estate to his mother for her life, remainder to Mrs. Dinsmore; also to his mother absolutely the household and kitchen furniture; he bequeathed his law library and some other personal effects to J. H. Dinsmore. The will was duly probated in Hopkins County.
Mrs. Sarah E. Putman left a will in which she devised all of her real estate to her daughter, Mrs. Dinsmore. The will was duly probated in Hopkins County.
During the time that Mrs. Putman resided with her son, J. A. B. Putman, now deceased, she performed all of the duties of a matron, keeping and caring for the house of a family, and he provided for his mother and sister as the head of a family would for his own family of wife and children, if they had been such.
B. T. Robertson was appointed administrator of the estate of J. A. B. Putman and Mrs. Mary Roots presented her claim against the estate, which was allowed and classed as a fourth-class claim. The estate proved to be insolvent and all of the property, except that which is here in controversy, has been sold and all of the debts of the first, second, and third class have been discharged. Mrs. Roots made an application in the probate court of Hopkins County to have the property subjected to the payment of her claim, which was refused by that court and appeal taken to the District Court, which resulted in a like judgment. The Court of Civil Appeals affirmed the judgment of the District Court.
If we concede, for the sake of argument, that J. A. B. Putman and his mother, while living together, constituted' a family within the meaning of article 16, section 50, of the Constitution, so that the exemption expressed in that section would apply to the head of the family in his life, still the mother can not hold the homestead after the death of her
son, because she can not inherit the exemption which was accorded to him and does not come within the terms of section
52
of article 16 of the Constitution, nor within the provisions of article 2046 of the Revised Statutes.
The language, “the homestead of a family shall be and is hereby protected from forced sale for the payment of debts/-' etc., found in the fiftieth section of article 16 of our present Constitution, is practically the same as that embraced in the Constitution of 1845 on the same subject, and has been so expressed in each subsequent Constitution. In the case of Sampson & Keene v. Williamson, 6 Texas, 110, the term “forced sale” was by the court defined as follows: “A forced sale has been defined to be a sale made at the time and in the manner prescribed by law, in virtue of an execution issued on a judgment already rendered by a court of competent jurisdiction; or, in other words, a forced sale is one which is made under the process of the court and in the mode prescribed by law.” This was the recognized meaning of the Avords “forced sale” when embodied in the present Constitution and they were eAddently understood and used in that sense by the members of the convention, for they employed the following clear and explicit language to qualify and limit the definition as applied to deeds of trust upon the homestead: “No mortgage, trust deed, or other lien on the homestead shall ever be valid except for the purchase money therefor or improvements made thereon as hereinbefore provided, AAdiether such mortgage or trust deed or other lien shall have been created by the husband alone or together Avith his Avife, and all pretended sales of the homestead involving any condition of defeasance shall be void.” This language shows that attention Avas called to the - definition given to “forced sale.” The sale by deed of trust, excluded by the interpretation of the court from the exemption, is prohibited by this provision, but the language “forced sale” was readopted as construed. The exemption expressed in section 50 applies to property while the head of the family is living, but furnishes no rule for its disposition after his death. Givens v. Hudson, 64 Texas, 473; Zwernemann v. Von Rosenberg, 76 Texas, 525. In the last named case, Judge Gaines, speaking for the court, said: “In the previous Constitution of the State, the disposition of the homestead after the death of the owner Avas left Avholly to the Avisdom of the Legislature. It is so, also, in the present Constitution, except as to the manner of its descent and the use reserved to the sundving spoxise and the minor children.”
It has been freqiAently and uniformly held in this State that the homestead exemption does not descend to heirs, but they take the property, under the statute and the Constitution, exempted from the debts of the ancestor, not because it was exempted in his hands, but because they come Avithin the class of persons named in the Constitution and the law. In the case of Givens v. Hudson, cited above, Judge Stayton said: “The thing is not exempted to the child or widow because it was exempted to the father or husband, who Avas the head of the family,
but because the child or widow was and remained a constituent of the family.”
Section
52
of article 16 of the Constitution is in the following words: “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, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor 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.” The effect of this provision was to change the rule established under the act of 1848, that when the homestead of an insolvent estate was set apart to the surviving widow and minor children, they took an absolute title to it to the exclusion of other heirs, and to provide that in such case the title to property should vest in the heirs according to law; but the widow and minor children should have the right to use it as a homestead under the limitations expressed in the Constitution.
Article 2055 of the Revised Statutes reads thus: “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.” That portion of this article which gives to the widow and minor children absolute title to the homestead in case the estate be insolvent, is in conflict with section 52, article 16, of the Constitution, and, to that extent, is void as to the other heirs; and we must read the article of the statute without that provision in order to determine the rights of such parties to the homestead.
Considering section
52,
article 16, of the Constitution, as interpreted by this court in Givens v. Hudson and Zwernemann v. Von Rosenberg, in connection with articles 2046 and 2055, Revised Statutes, the law may be concisely stated thus: Upon the death of one who was the head of a family, leaving a widow and minor children or either, it is made the duty of the County Court to set aside the homestead and other exempted property to such widow and minor children, who would be entitled to the use of the homestead under the limitations of section 52, article 16, of the Constitution, but the title to the property would vest in all of the heirs, not, however, subject to the debts of the deceased, because, being set apart by the court, it is withdrawn from the administration of his estate and would not afterwards become subject to the payment of debts if not used as a homestead, because the exemption by law attaches after death in favor of the persons named.
There is no provision of the law that authorizes a court to set apart exempt property of an estate to the surviving constituents of every family to which it may have been exempted. The constituents of a
family who are entitled to the homestead and other exempted property, upon the death of the head, are named in the law and the Constitution. The mother of the deceased is not named and Mrs. Putman had no homestead right in the property.
Under the will of J. A. B. Putman, the defendants in error did not take the property free from his debts. Howard v. Marshall, 48 Texas, 480. In the case cited, the judgment was reversed because the facts did not show that the deceased had a family and was entitled to the exemption of homestead, but, in remanding the case, this court, by way of instruction, held that if deceased had a homestead exempted by law, he could not dispose of it by will so as to defeat the claims of creditors. It is well established that a creditor’s claim for payment out of the estate of a decedent is superior to the rights of heirs, legatees, and devisees. The exemption of property from forced sale can not be transmitted by descent nor transferred by will.
It was suggested in argument that Putman could have given the property to the defendants in error in his lifetime and might have made the conveyance take effect after his death, and that the donee would have taken it free from creditor’s claims, from which it is argued that he could give it by will. It is true that an estate may be made to commence in the future by deed, but the deed must vest the right
at the present
or it will be construed to be a will. Griffis v. Payne, 92 Texas, 293. The superior right of the creditor, under the law, attached, upon the death of the debtor, in preference to the right claimed under the will.
It is ordered that the judgments of the District Court and Court of Civil Appeals be reversed and that the cause be remanded to the District Court, to be disposed of according to this opinion.
Reversed and remanded.