That A. B. Stone owned an undivided interest in the tract which embraced the homestead of his father, as well as the land conveyed by the latter to his sons, Warren T. and J. B. Stone, cannot be questioned. This entire tract was contiguous to the tract on which A. B. Stone lived, which embraced only eighty-five acres. The contiguity of this tract to the tract in which the appellee had an undivided interest, in connection with the facts manifesting his intention to make his interest in the latter tract a part of his homestead, we are of the opinion, was sufficient to justify the finding of the court below, that the land in controversy constituted a part of his homestead at the time the appellant caused an execution to be levied upon it.
It is unnecessary to consider, whether, under the terms of the will of Warren T. Stone, the appellee had possession of the land of which that in controversy is a part, solely as the executor of the will of the former until the death of A. B. Stone, Sr., for the possession continued for some days after the death of the latter before the execution was levied upon it. The use which was made of the land during that period, with intent that it should become a part of the homestead, was sufficient to give it that character. Such would be the result if the use had not extended to that particular part of the undivided tract which was subsequently set apart to the appellee in partition. Clements v. Lacy, 51 Tex. 150 ; Jenkins v. Volz, 54 Tex. 639 ; Brown v. McLennan, 60 Tex. 43.
*442The fact that, on partition, the appellee received a tract of land, out of the tract in which he took an interest through the will of his brother, separated from that on which he actually lived, could not affect his right, for the constitution expressly provides that the rural homestead may consist of one or more parcels of land. Const., art. 16, sec. 61. We find no error in the judgment, and it is affirmed.
Affirmed.
[Opinion delivered February 9, 1886.]