Newland v. Holland
| Decision Date | 01 January 1876 |
| Citation | 45 Tex. 588 |
| Parties | ROBERT AND NANCY NEWLAND, ADM'RS, v. CLARINDA HOLLAND |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
ERROR from Coryelle. Tried below before the Hon. J. P. Osterhout.F. H. Sleeper, for plaintiffs in error.
The assignment of errors in this case, are none of them sufficiently specific and definite to require any consideration from this court. But as the determination of the question sought to be presented by these assignments, is essential to the proper distribution of the estate of appellant's intestate, it may not be amiss for us to express our views upon it, although appellants would have no just cause to complain if we declined doing so, even though there was manifest error in the rulings of the court to which the assignment of error evidently has reference.
That a wife who voluntarily, and without any just and reasonable cause, abandons and separates herself from her husband, and continues, in wanton disregard of her duties as a wife, to live separate and apart from him at the time of his death, is estopped and precluded from claiming the homestead rights given by the Constitution and statutes to the surviving wife is not now an open question in this court. See Sears v. Sears, decided at a former day of this term, and the cases then cited. But it by no means follows that the court can hold, that by so doing she also forfeits her entire interest in the community estate or the distributive share of the separate property of her deceased husband, given her by the statute.
The homestead is intended for the comfort and security of the family, and for like considerations its rights and privileges are extended to and conferred upon the family of the decedent, after his death, so long as any constituent of it remains. But it is only when there is a family, or some remaining constituent of the family, surviving him that the rights and privileges of the homestead subsist or are recognized by law. Unquestionably when the wife has voluntarily and without cause withdrawn from and destroyed the family, ceased to be a member of it, it would be mockery to say that she is reunited to or become again a member of it by the death of her husband, or can claim privileges and immunities which by law are only given to the family or some surviving constituent of it.
But the right of the surviving wife to her interest in the community property, or her distributive portion of the separate estate of her deceased husband, grows out of and depends upon the existence of the marital relation between the parties, and not merely upon continued existence of the family. It may be, that by the separation, the community interest in future gains will cease; but certainly it does not work a forfeiture in such as have been previously acquired. And the mere withdrawal of the wife from the husband and continuance to live separate and apart from him, however unjustifiable and improper her doing so may be, does not operate and cannot be treated as tantamount to a severance of the marital...
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Good v. Good
...Civ App.) 91 S. W. 363, 364 (writ refused); Trawick v. Harris, 8 Tex. 312, 316, 317; Earl v. Earl, 9 Tex. 630, 633, 634; Newland v. Holland, 45 Tex. 588, 589, 590; Duke v. Reed, 64 Tex. 705, 712, 713; Cockrell v. Curtis, 83 Tex. 105, 107, 18 S. W. 436. On the other hand, notwithstanding the......
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