In this case the Court of Civil Appeals held that the landlord's statutory lien on the crop raised on the rented premises for the agreed money rent is, in an administration upon the insolvent tenant's estate consisting only of such crop, superior to the allowance in lieu of exempt property in favor of the minor children and unmarried daughter of deceased. (39 S.W. Rep., 128.) This court granted an application for writ of error made by said children and rendered judgment for defendant in error. (39 S.W. Rep., 362.) This is a motion for rehearing. It is the duty of the court at its first term after the filing of the inventory appraisement and list of claims to make an order *Page 602 setting aside the exempt property. (Rev. Stats., ch. 18.) The purpose of this order is not to vest any greater right in the family in said property than they would otherwise have under the law, but merely to segregate it from the estate of the deceased, which the Probate Court is thereafter to deal with. Claims against this estate thus segregated are to be classified and paid as provided in Rev. Stats., ch. 20, and the "allowance made to the widow and children, or either" provided for therein refers solely to the "allowance for the support of the widow and minor children of the deceased" provided for in Rev. Stats., ch. 17; for in both chapters such allowance is made subject to "funeral expenses and expenses of last sickness" if the latter claims be presented in sixty days from granting of letters testamentary. (Rev. Stats., art. 2044 and 2093.) This allowance as well as other claims mentioned in chapter 20 are claims against the estate in the hands of the administrator, but not against the exempt property, with which he has nothing to do, it being made the duty of the court, as above stated, in the very beginning of the administration to set it aside to the widow and children. While, as between the widow and children and the administrator, the exempt property goes to the former and is generally not to be considered part of the estate in the hands of the latter, still under arts. 2402, 2000, 3235, 3236 and 3237 the exemptions themselves do not take effect except subject to certain claims, one of which is the landlord's lien under consideration. If the estate be insolvent the exempt property could be set aside subject to these liens, and if solvent the widow and children would probably be entitled to have them discharged by the administrator before setting aside, but in no event can their claims displace such liens. As to animals and tools furnished by the landlord his lien seems to be clearly a vendor's lien, such as contemplated in art. 2000, and it appears that the articles above cited place his lien on the crops on as high a plane as his lien on such animals and tools. This appears to be equitable, since the rent is the consideration for the lease of the land upon which the crops are grown. It would be manifestly unjust to allow the family of the tenant who happened to die within the year to claim as exemptions the very teams and tools furnished by the landlord for which he had not received pay, or the entire crop produced upon the landlord's land, to the exclusion of the claim of the landlord for the value of such teams and tools and rent for the land. This would be virtually taking the landlord's property and giving it to the tenant's family. We do not think the statutes evidence so unjust an intent. Since the landlord's lien is superior to the children's claim to exempt property, we think it follows that it is superior to the "allowance in lieu thereof" provided by art. 2047, which must abide the fate of the exemptions themselves. We do not consider art. 5175a as having any bearing upon the question under consideration, though it shows that the Legislature intended to relinquish the State's claim for taxes in certain cases in favor of the widows and minors, etc.
The motion will be overruled.
Motion overruled. *Page 603