GAINES, Associate Justice.
At the last term of this court at this place an opinion was delivered in these cases and a judgment entered reversing the decree of the lower court and remanding the cause. The appeal and the writ of error were by different parties from the same judgment. Within the fifteen days the appellant and the plaintiffs in error practically joined the appellee, who was also the defendant in error,, in a motion to set aside the judgment of reversal and to grant a rehearing— waiving the error for which the judgment had been reversed. That error was in proceeding to judgment in behalf of appellee, who was plaintiff below, without proof that no other debts except his own existed against the estate of the defendant’s ancestor. The object of the waiver was to obtain a decision of the courts upon the merits of the case.
The plaintiff below, as a creditor of one J. 0. Brau, deceased, sought to recover of plaintiffs in error and the wards of appellant on the ground that as children and heirs of the decedent they had received property belonging to his estate subject to the payment of his debts.
The trial judge filed his conclusions of fact and law, the substance of which is correctly stated in appellant’s brief as follows:
“1. That J. 0. Brau did make the said notes, as alleged by plaintiff; that plaintiff is the owner of them, and that there is due him on said notes $730.78—a community debt.
“2. That J. 0. Brau died at his home in Fayette County, Texas, September, 1883, and Caroline Brau died at said home March 7, 1885.
fi3. That said J. C. Brau and Caroline Brau were husband and wife, heads of a family consisting of themselves and their children, the defendants, Henry, Amelia, Conrad, Dorothea, John, Albert, Augusta, and Bobert, and lived together as a family on said land, it being their homestead of 151 acres, and that they had no other land or homestead.
“4. That after J. C. Brau died, his widow, Caroline Brau, continued [524]*524until her death to occupy said land as a homestead with her children, whose names, ages, and sexes are as follows, viz.: Henry, a male, 26 years old; Amelia, a female, 24 years old; Conrad, a male, 23 years old; Dorothea, a female, 20 years old; John, a male, 16 years old; Albert, a male, 14 years old; Augusta, a female, 12 years old; and Robert, a male, •8 years old.
“5. That all said children lived with their father and mother as a family on said homestead until the father died, and afterwards with their mother till she died, except Amelia, who married and moved off between the dates of her father’s and mother’s deaths.
“ 6. That after the mother died said children, except Amelia, continued to live on said homestead as a family, and they have no other homestead, nor did their mother before her death acquire any other homestead.
“7. That both J. C. and Caroline Brau died intestate and insolvent.
“8. That Caroline qualified as community survivor in the County Court of Fayette County; that all the estate was community, and, except $720 in money and cotton, was exempt property; that said $720 in money and cotton was paid by Caroline before her death, as follows, viz.: $595 to the extinguishing in part of vendor’s liens, valid debts, on said homestead, and the balance to the extinguishment of valid debts against the community estate, such as medicines and' medical bill incurred in last sickness and funeral expenses of the husband.
“ 9. That of said community property only the following came into the hands of said children, viz.: (1) The homestead, worth $1820.67; (2) two horses, worth $100; (3) ten head of cattle, worth $80; (4) twenty hogs, worth $60; (5) farming tools, worth $65; (6) wagon and harness, worth $40; (7) buggy and harness, worth $30; (8) household and kitchen furniture, worth $130; and that all of it would have been exempt by law from sale for the payment of any debt of the estate of either J. C. Brau or Caroline Brau, whose estates were insolvent.
“ 10. That there are other valid and subsisting community debts unsatisfied against the estates of J. C. and Caroline Brau besides that of plaintiff, but the amount is not shown by the evidence.
“ 11. That there is a duly opened guardianship on the estates of John, Albert, Augusta, and Robert Brau in the County Court of Fayette County, and M. Zwernemann, defendant, is guardian, who qualified May 15, 1885, but no order has been made in the County Court concerning the occupancy of the homestead, nor has any been applied for.”
Hpon these facts the court concluded as a matter of law that the minor defendants tvere entitled to the use of the homestead during their minority, but that subject to this use the inheritance of each of the defendants in the property was liable to sale for the payment of the ancestor’s debts. [525]*525Judgment was rendered accordingly. For the purposes of this opinion the details of the judgment need not be stated.
We are of opinion that the court erred in holding that the defendants inherited the homestead charged with the payment of their father’s debts. The constitutional provision which regulates the descent of the homestead reads as follows:
“On the death of the husband or wife, or both, the homestead shall descend and vest 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 jurisdiction, to use and occupy the same.” Const., art. 16, sec. 52.
It having been decided under the Probate Act of 1848 that in insolvent estates the widow and minor children took an absolute title to the homestead to the exclusion of the adult heirs (Horn v. Arnold, 52 Texas, 161), it was probably the purpose of this provision to prevent a repetition of that legislation. It is clear that it was not intended to determine the disposition of the homestead after the death of the owner as between his heirs and his creditors further than to designate it as a home for the surviving husband or wife and for the minor children under the prescribed limitations. In the previous Constitutions of the State the disposition of the homestead after the death of the owner was left wholly to the wisdom 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 surviving spouse and the minor children. The language “ shall descend and vest as other property of the deceased ” was employed, we think, to determine the persons who should take and their respective interests, but not the conditions which were to be imposed upon the inheritance. It ivas not, in our opinion, intended that the homestead should descend charged with the payment of debts as other property.
When the present Constitution was adopted the policy of exempting from administration for the payment of debts such property of the decedent as had been exempt from forced sale during his lifetime had been steadily pursued by our Legislatures.
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GAINES, Associate Justice.
At the last term of this court at this place an opinion was delivered in these cases and a judgment entered reversing the decree of the lower court and remanding the cause. The appeal and the writ of error were by different parties from the same judgment. Within the fifteen days the appellant and the plaintiffs in error practically joined the appellee, who was also the defendant in error,, in a motion to set aside the judgment of reversal and to grant a rehearing— waiving the error for which the judgment had been reversed. That error was in proceeding to judgment in behalf of appellee, who was plaintiff below, without proof that no other debts except his own existed against the estate of the defendant’s ancestor. The object of the waiver was to obtain a decision of the courts upon the merits of the case.
The plaintiff below, as a creditor of one J. 0. Brau, deceased, sought to recover of plaintiffs in error and the wards of appellant on the ground that as children and heirs of the decedent they had received property belonging to his estate subject to the payment of his debts.
The trial judge filed his conclusions of fact and law, the substance of which is correctly stated in appellant’s brief as follows:
“1. That J. 0. Brau did make the said notes, as alleged by plaintiff; that plaintiff is the owner of them, and that there is due him on said notes $730.78—a community debt.
“2. That J. 0. Brau died at his home in Fayette County, Texas, September, 1883, and Caroline Brau died at said home March 7, 1885.
fi3. That said J. C. Brau and Caroline Brau were husband and wife, heads of a family consisting of themselves and their children, the defendants, Henry, Amelia, Conrad, Dorothea, John, Albert, Augusta, and Bobert, and lived together as a family on said land, it being their homestead of 151 acres, and that they had no other land or homestead.
“4. That after J. C. Brau died, his widow, Caroline Brau, continued [524]*524until her death to occupy said land as a homestead with her children, whose names, ages, and sexes are as follows, viz.: Henry, a male, 26 years old; Amelia, a female, 24 years old; Conrad, a male, 23 years old; Dorothea, a female, 20 years old; John, a male, 16 years old; Albert, a male, 14 years old; Augusta, a female, 12 years old; and Robert, a male, •8 years old.
“5. That all said children lived with their father and mother as a family on said homestead until the father died, and afterwards with their mother till she died, except Amelia, who married and moved off between the dates of her father’s and mother’s deaths.
“ 6. That after the mother died said children, except Amelia, continued to live on said homestead as a family, and they have no other homestead, nor did their mother before her death acquire any other homestead.
“7. That both J. C. and Caroline Brau died intestate and insolvent.
“8. That Caroline qualified as community survivor in the County Court of Fayette County; that all the estate was community, and, except $720 in money and cotton, was exempt property; that said $720 in money and cotton was paid by Caroline before her death, as follows, viz.: $595 to the extinguishing in part of vendor’s liens, valid debts, on said homestead, and the balance to the extinguishment of valid debts against the community estate, such as medicines and' medical bill incurred in last sickness and funeral expenses of the husband.
“ 9. That of said community property only the following came into the hands of said children, viz.: (1) The homestead, worth $1820.67; (2) two horses, worth $100; (3) ten head of cattle, worth $80; (4) twenty hogs, worth $60; (5) farming tools, worth $65; (6) wagon and harness, worth $40; (7) buggy and harness, worth $30; (8) household and kitchen furniture, worth $130; and that all of it would have been exempt by law from sale for the payment of any debt of the estate of either J. C. Brau or Caroline Brau, whose estates were insolvent.
“ 10. That there are other valid and subsisting community debts unsatisfied against the estates of J. C. and Caroline Brau besides that of plaintiff, but the amount is not shown by the evidence.
“ 11. That there is a duly opened guardianship on the estates of John, Albert, Augusta, and Robert Brau in the County Court of Fayette County, and M. Zwernemann, defendant, is guardian, who qualified May 15, 1885, but no order has been made in the County Court concerning the occupancy of the homestead, nor has any been applied for.”
Hpon these facts the court concluded as a matter of law that the minor defendants tvere entitled to the use of the homestead during their minority, but that subject to this use the inheritance of each of the defendants in the property was liable to sale for the payment of the ancestor’s debts. [525]*525Judgment was rendered accordingly. For the purposes of this opinion the details of the judgment need not be stated.
We are of opinion that the court erred in holding that the defendants inherited the homestead charged with the payment of their father’s debts. The constitutional provision which regulates the descent of the homestead reads as follows:
“On the death of the husband or wife, or both, the homestead shall descend and vest 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 jurisdiction, to use and occupy the same.” Const., art. 16, sec. 52.
It having been decided under the Probate Act of 1848 that in insolvent estates the widow and minor children took an absolute title to the homestead to the exclusion of the adult heirs (Horn v. Arnold, 52 Texas, 161), it was probably the purpose of this provision to prevent a repetition of that legislation. It is clear that it was not intended to determine the disposition of the homestead after the death of the owner as between his heirs and his creditors further than to designate it as a home for the surviving husband or wife and for the minor children under the prescribed limitations. In the previous Constitutions of the State the disposition of the homestead after the death of the owner was left wholly to the wisdom 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 surviving spouse and the minor children. The language “ shall descend and vest as other property of the deceased ” was employed, we think, to determine the persons who should take and their respective interests, but not the conditions which were to be imposed upon the inheritance. It ivas not, in our opinion, intended that the homestead should descend charged with the payment of debts as other property.
When the present Constitution was adopted the policy of exempting from administration for the payment of debts such property of the decedent as had been exempt from forced sale during his lifetime had been steadily pursued by our Legislatures. In this we have found “ no variableness nor shadow of a turning.” First, by the Act of the 9th of January, 1843, it was provided that “the same amount of property and the same kind, if so much belong to the estate in kind, that is exempt from sale under fieri facias or execution * * * be and the same is hereby declared to be exempt from sale by order of any Probate Court.” By the law of 1846 the exemption was enlarged by providing that in the event there should not be among the effects of the deceased all of the specific [526]*526articles exempt from forced sale by the Constitution and laws of the State, a sale of sufficient property should be ordered in order to purchase such articles for the use of the widow and children. Pasch. Dig., art. 1305, note 481.
The rights of the widow and children were still further enlarged by the Act of March 20, 1848; and in Green v. Crow, 17 Texas, 180, it was held ■that under that act, in case of an insolvent estate, the widow and children took an absolute title to the exempt property set apart to them. The probate law of 1870 seems to give emphasis to the provision that as a rule creditors have no claim upon the property of a decedent previously exempt from forced sale, by prescribing that in case a constituent of the family survive such property “does not form any part of the estate of a deceased person.”
In Scott v. Cunningham, 60 Texas, 566, this provision was given a construction in harmony with the former laws upon the same subject. This was the law in force when the existing Constitution took effect. In our opinion it was not repugnant to any provision of that instrument, and therefore continued in force until repealed by subsequent legislation. Under none of the laws cited was the exempt property subject to be sold by the order of the court of probate in case a constitutent of decedent’s family survived.
When we turn to our existing statutes the intention of the Legislature is clear. Article 1993 of the Revised Statutes reads as follows: “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 unmarried daughters remaining with the family 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.” Article 2002 also provides that “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 debts of the estate except as hereinafter provided.” The debts thereinafter provided for are certain liens and preferred claims. Arts. 2007, 2008. This language is explicit and of itself is not difficult of construction. With regard to the homestead there is difficulty growing out of what we conceive to be a conflict between that article and the section of the Constitution previously quoted. Since the exempt property is to be set apart and delivered to the widow, minor children, and unmarried' daughters, to the exclusion of adult children not females and unmarried, we think by the literal interpretation of article 2002 it was meant that the property should in case of insolvency descend absolutely [527]*527to the widow, minor children, and unmarried daughters, and that the other children were to be excluded. But we are of opinion that section 52 of article 16 of the Constitution prohibits this disposition of the homestead, and, as before intimated, that it was, in part at least, its immediate purpose to prohibit just such a law.
So much of article 2002 as attempts to provide that the homestead of a decedent whose estate is insolvent shall descend to the widow, minor children, and unmarried daughters, to the exclusion of other persons entitled to the real estate of the ancestor under our general laws of descent and distribution, can not take effect. But' we do not think that it follows that because the Legislature has attempted to exceed its authority in this particular all the article should be held wholly inoperative and void. The leading object of the provisions of the Revised Statutes upon this subject was to prescribe that the exempt property should not be subject to sale by the order of the Probate Court for the payment of debts generally, in the event either husband or wife, or a minor child or an unmarried daughter survived the owner. This object is clearly manifested by other articles of the Revised Statutes relating to the administration of the estates of deceased persons. Article 1817 provides that when a person dies his property shall descend to his heirs, but also provides that “ all of such estate * * * except such as may be exempted by law from the payment of debts shall still be liable and subject in their hands to the payment of the debts of such * * * intestate.” Article 2007 prescribes that “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 imj>rovements thereon,” etc. This is to be construed in connection with and to be limited by article 2002, which applies only to homesteads of decedents who leave a constituent of the family surviving. Givens v. Hudson, 64 Texas, 471. Thus limited language could not make the intention more clear to continue after death the exemption which before existed.
The rule for the construction of statutes in partial conflict with the Constitution is, that if the portion repugnant to the fundamental law can be stricken out and that which remains is complete in itself and “capable of being executed in accordance with the legislative intent it must be sustained.” Ex Parte Towles, 48 Texas, 421, quoting Cool, on Const. Lim., 178. If the unconstitutional provision be but incidental to the main purpose and be not essential to give effect to the statute, such part maybe rejected, leaving the remainder to stand. The provisions we have quoted clearly show, we think, that it ivas the legislative intent to utterly •exempt the homestead from the claims of the general ■ creditors of the estate, provided a constituent of the family survived the decedent, and in case the estate was insolvent to remove it beyond the pale of administration. This is in accordance with all previous legislation and is not [528]*528repugnant to the Constitution. So much of the statute as attempts to-make the homestead of an insolvent to descend in a manner different, from other real property is prohibited by the Constitution and is void. But the other provisions of the statute are not dependent upon this. They can have effect without it, and should therefore stand. The homestead should be held exempt from the payment of debts and to descend not as prescribed in article 2002, but as provided in the Constitution.
It is clear that if property is not subject to sale by order of the Probate Court for the payment of debts, the heirs who have received the property, there being no administration, can not be charged with its value at the suit of the creditor.
It follows from what we have said that the homestead in this case could not be subjected to the payment of plaintiff’s debt. The judgment must-therefore be.reversed and will be here rendered in favor of the defendants in the court below.
Reversed and rendered.
Delivered March 14, 1890.