*586Dissenting Opinion.
Stayton, Associate Justice.Hot being able to concur in the opinion of the majority of the court, I will briefly state the grounds of my dissent.
The statute provides that, “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.” P. S., art. 1993.
“ In case there should not be among the effects of the deceased. all or any of the articles so exempted, it shall be the duty of the court to make a reasonable allowance in lieu thereof, to be paid to such widow and children, or such of them as there may be, as hereinafter directed.” R. S., 1994.
“ The allowance in lieu of a homestead shall in no case exceed five thousand dollars, and the allowance for other exempted property shall in no case exceed five hundred dollars, exclusive of the allowance provided in the preceding chapter.” R. S., 1995.
The first inquiry that arises under these articles is, to what property do they refer ?
Art. 1993 refers to property exempted “by the constitution and laws of the state.” Ho property is exempted by the constitution except the homestead (Const., art. XVI, sec. 50); but power is given to the legislature by section 49 of same article to exempt other property.
It is true that the constitution does provide that “ Ho current wages for personal services shall ever‘be subject to garnishment;” but ordinarily the word “wages” would not be held to have so broad a meaning as would *587be required to induce the belief that the legislature had that in view in the articles above referred to; besides, the intent of the constitution in exempting current wages was to enable a person to provide a present support, and could have had no reference to the allowance to the family of a deceased person; but if so, that could not affect any other exemption clearly made.
By the use of the words, “all or any of the specific articles so exempted,” in art. 1994, we are referred to the preceding article for the measure of the exemption, in lieu of which, where the articles do not exist in kind, an allowance is to be made in money or other property; the measure as thus given is: “All such property of the estate as may be exempted from execution or forced sale by the constitution and laws of the state.”
Art. 1995 in terms provides for an allowance in lieu of homestead, and fixes the maximum amount thereof. To my mind these provisions of the statute apply to an allowance in lieu of homestead as fully as they apply to an allowance in lieu of personal property exempt; and as if to intensify and render certain beyond dispute the full meaning of the law, and to make it clear that an allowance shall be made in lieu of every article of exempt property not found among the property of the deceased, it declares that if there be not among the effects of the deceased “ all or any of the specific articles so exempted,” that is to say, all of the property exempted by the constitution or statute law of the state, that it shall be the duty of the court to make a reasonable allowance in lieu of any article of exempt property which may not exist among the property of the deceased.
It is true that art. 1994, R. S., does use the word “effects,” and that art. 3140, R. S., in defining that word, declares that it “includes all personal property and all interests therein;” but it also provides that such shall be the meaning of the word “unless a different meaning is apparent from the context.
*588When we consider that property in lieu of which an allowance is to be made is that exempted by the constitution as well as that exempted by the statutes, and that nothing is exempted by the constitution except the homestead, which is neither personal property nor an interest therein, to my mind it is evident that the word “ effects,” in art. 1994, is not used in the restricted sense claimed for it, but in a sense broad enough to embrace any description of property exempted.
It is claimed, however, that as the wife owned in her separate right a homestead, the statute does not contemplate an allowance in lieu of a homestead out of the estate of the deceased husband.
While the separate property of the wife may have been the homestead of the family during the life of the husband, it certainly is true that such property cannot be said to be “ among the effects of deceased,” that is, property pertaining to the estate of the deceased husband; and the statute evidently contemplates that the exempt property, if it exists in kind, shall be taken out of the estate of a deceased husband, and if such property does not exist among the property of the deceased, an allowance in lieu thereof shall be taken from property which does belong to such estate; for it is in lieu of property not found among the property of such estate that the statute declares the allowance shall be made.
If it had been the intention of the legislature that the wife and family of a deceased person should have no allowance out of his estate when the wife owned a home-6 stead in her separate right, it would have been so easy to have said so, that I cannot believe it was so intended in the absence of a declaration to that effect, in the face of the language used by the legislature.
In regard to the allowance for the support of the family for twelve months, the legislature declared that “no such allowance shall be 'made for the widow when she has separate property adequate to her maintenance; nor *589shall such allowance be made for the minor children when they have property in their own right adequate to their maintenance.” Art. 1986, R. S. Why not so have, declared in reference to allowance in lieu of exempt property if it was so intended ?
In the case of Mabry v. Ward, 50 Tex., 411, it was in effect decided that the fact of the wife and children having ample separate estate for their maintenance would not under the statute defeat their right to the allowance in lieu of homestead and other exempt property; and I cannot clearly see why, if some of the property so owned by the wife in her own separate right be a home in which the family have resided, she and her children should be precluded from the allowance by reason of that fact, while with ample wealth with which to buy many homesteads the allowance for all exempt- property would be made.
The articles of the Revised Statutes before referred to provide a rule for all cases, and articles 1996, 1997 and 1998 recognize the fact that the children of a decedent may not be the children of the surviving wife; and that upon the death of the father, the home which was his home, but the separate property of the wife, may not longer be their home, and provides in the distribution of an allowance for the protection of such children, even though they be adult but unmarried daughters. To them it would in many cases be but poor comfort to be informed that their stepmother owns a homestead.
It was intended -by the statute to protect such persons, and in my judgment this can only be done by giving effect to the plain letter of the statute.
The course of legislation in this state upon the subject of allowances to the surviving family have fluctuated, but step by step the allowance has been liberalized.
Under the act of 1848, such property of a decedent as was exempt from forced sale was set apart to the use of *590the widow and children; but if not found in kind, no provision was made for an allowance in lieu thereof.
The act of 1846, after directing that the exempt property should be set apart to the widow and children if found in kind, provided, if the property should not exist in kind, that a sufficiency of the estate should be sold to procure the exempted articles.
The act of 1848 contained substantially the same provisions in regard to setting apart for the use of the widow and children the exempt property, but contained the further provision, that an allowance in money or other property of the estate should be set apart to the widow and children of the decedent in lieu of exempt property not found among the effects of the estate; this act also provided for the distribution of the allowance among the beneficiaries.
The act of 1870 simply provided 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;” but it gave no specific directions in regard to the distribution of the exempt property or its value.
The act of August 9, 1876, which is carried into the Revised Statutes, is in its provisions very similar to the act of 1848, but as before stated it makes unmarried daughters beneficiaries without reference to their ages; and in case of an allowance in lieu of exempt property, it provides that “If there be both widow and children, the whole to be paid to such widow if she be the mother of such children, but if she be not the mother of such children, one-half to be paid to such widow and the other half to such children if they be of lawful age, or to then-guardians if they be minors, or to be equally divided between them.” R. S., 1998.
These facts, in addition to what seems to me to be the *591true import of the language used by the legislature, force upon me the conviction that the fact the wife may own a homestead, yea, a homestead made her separate property by the gift of the husband, which is but her separate property however acquired, cannot deprive her, or his children by her, or the children of the husband by a former wife, of their right to an allowance in lieu of homestead, out of the husband’s and father’s estate.
Nor am I prepared to say, where the statute provides as it does, a means by which creditors who take lien upon property may so secure it, that it will not be subject to sale to make up allowance in lieu of exempt property (R. S., 2000), if they fail to do so, that legislation which appropriates property as I believe it ought to be under the law, in this case, should shock the moral sense of mankind as being against the common dictates of justice and equity.
The whole matter was one for legislative discretion, which we must presume has been exercised wisely; but whether so or not, I have a deep conviction that I have no right to dispose of the question in accordance with my own sense of abstract right or equity, if the same be in conflict with the expressed intention of the legislature.
If the spirit of the law be bad, let it be repealed by that department of the government whose duty it is to make and to repeal laws. Entertaining the views which I do in regard to the construction of the statutes, I cannot consent to assist in repealing thereby a construction which my judgment does not approve.