Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 427
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1875.] :ROGERS V. RAGLAND. 427
Argument for the plaintiffs in error.
trine is established, and the homestead which the law secures
to the widow is not the homestead which her husband held
and enjoyed, but an abstract homestead right, which the widow
may cut loose from its old mooring, and float to and anchor
upon any other real estate to which the 'husband held title,
then no guardian, or trustee, or other person, can lend money
upon real estate security, with any guaranty that he may not
thereafter find his lien divested, his security gone, and his
money lost, because the widow of the borrower has chosen
to locate her homestead right upon the land embraced by his
It has been frequently held by the court, that the homestead
was in no wise subject to administration for the benefit of creditors,
and in 1870 it was enacted by the Legislature, that " the
"property reserved from forced sale by the Constitution and
' laws of this State, or its value, if there be no such property,
" does not form any part of the estate of a deceased person
" where a constituent of the family survives." (Probate Act,
Section 26.) But how are estates to be settled, if what this
exempted property is cannot be ascertained. If it is subject
to shift and change at the election of the widow, and no time
is fixed within which her election shall be made ?
How can anything be done, on an.ysure foundation, if, as in
the case at bar, the widow may wait nearly two years after
administration is opened before she intimates any claim to
certain lands as homestead; and then when her claim is adjudicated
against her, she may lie still, in apparent acquiescence,
for more than another year, while in the meantime the land
has been sold under orders of the Probate Court for payment
of debts, and has passed into the hands of an innocent purchaser;
and then, after all this, may come into court and say,
" If the land was not originally homestead, I claim the right
" to select it as a homestead now ? " It is not easy to exaggerate
the hardships, injustice, uncertainty and confusion which
such a state of the law must introduce.
We take it, therefore, that under the true exposition of the
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/435/: accessed June 24, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .