The record shows that the witness Harms was allowed to testify, over objections of the plaintiff, to the declarations of the intervenor touching the death of her mother. The bill of exceptions shows that the objections were carefully made and overruled.
The rule is, “if the declarant be living, he must be produced in court.” 1 Wharton on Ev., sec. 215; Johns v. Northcutt, 49 Tex., 454, 455, and cases cited.
There was no other sufficient evidence of the death of Mrs. Lina Harms. Ho one who testified seemed to have taken any interest in ascertaining whether she was living or dead. The circumstances of her leaving home, and the cloud which no one wished to remove, resting upon her character, are reasons for her continued absence. There is no testimony showing the age she would be, to add to the mere lapse of time since she has been heard from. She is not shown to have left the country. Her last residence was at Galveston and she is not shown to have left that place. That no one has inquired may be sufficient reasons why no one had heard of her. It seems that something more should be shown than the merest negative testimony here given to raise the presumption of death from her absence from Hew Braunfels, her former residence. 2 Wharton on Ev., sec. 1274.
The title exhibited by plaintiff, under the testimony which was properly admitted, was sufficient to authorize a judgment for plaintiff. Harms had been in the possession of the lot since 1866; was himself the family; the grandson of his divorced wife formed no constituent part of his family. *329Besides, the homestead right could not be set up in the second suit. The foreclosure decree was conclusive against whatever of right defendant had therein. i
[Opinion delivered May 24, 1880.]The wife who abandoned the husband without cause would not be entitled to homestead rights. Sears v. Sears, 45 Tex., 557; Newland v. Holland, 45 Tex., 588.
To assert rights as heir, the death of the ancestor was a necessary part in the intervenor’s case. This, as was stated above, was not proven by admissible testimony.
As the remaining constituent of the family) it would seem that the husband could dispose of the entire interest in the homestead; the remainder, after his death, in the wife’s community, to go to her heirs at his death.
For the error in admitting improper testimony as to the death of the ancestor of intervenor, the case should be reversed.
Attention is called to the general nature of the allegations as to the time of the death of the divorced wife; to the uncertainty in that respect of all the testimony; also, to the absence of testimony to the status of the family occupying or entitled to the statutory homestead. Hnder what probate act would the rights be determined; whether the surviving husband may not by survivorship have become sole owner, are matters which may arise. 17 Tex., 187; 44 Tex., 249; 47 Tex., 380, etc.
The judgment should be reversed.
Revebsed aetd bemaitoed.