I concur with Associate Justice LOONEY in the conclusion that the cause should be reversed and remanded. My approach is somewhat different.
Because of the rare opportunity afforded and my regard for the firm conviction of Chief Justice BOND and his ripe and rich experience on the bench, both as a trial judge and as a member of this court, and, because of my respect for the trial judge and the able attorneys in this case, I desire to give my views.
In the opinions written by the other members of this court, there will be found a sufficient statement from the record.
The case as presented here, is whether or not the appellant, Marguerite B. Lindsley, as the surviving widow of Colonel Henry D. Lindsley, deceased, is put to an election under the terms of her deceased husband’s will. Must she choose between her right to have the independent executor set apart to her the exemptions provided by law for the surviving widow, and her right to receive the devises and legacies made to her under his will; or, is she entitled to receive both the exemptions, and the devises and legacies?
Words to which special attention is directed are italicized.
The principle underlying the doctrine of election is not statutory, but is purely equitable. The doctrine of election is generally regarded as being founded on the intention of the testator. Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620. An election may be expressed or implied. When not expressly made, it is a question of intention from all of the facts and circumstances of the particular case. 44 Texas Jur. 871, Section 291, Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906, 912.
“At common law the right of the wife to dower could not be defeated by the will of her husband, and, if she was provided for in the will in a manner inconsistent with her right of dower, she could elect whether she would take her dower, or surrender that right and take under the will as dev-isee. The spirit of our laws from the earliest days of the republic has been to make provision for the family on the death of the head thereof.” Hall v. Fields, 81 Tex. 553, 17 S.W. 82, 86.
“Estate of the widow, in dower at Common Law, is somewhat analogous to that of the wife, under our system, in the community gains-; and the rule is well established, that the widow cannot be excluded from her dower, unless the intention to exclude her appear by express words or manifest implication * * * of the will.” Carroll v. Carroll, 20 Tex. 731, 732-744.
“The principle of election is, that he who accepts a benefit under a will, must adopt the whole contents of the instrument, as far as concerns him; conforming to its provisions, and renouncing every right inconsistent with it; as where the wife claims something under the will which will disappoint the will.” Philleo v. Holliday, 24 Tex. 38.
There is not found in the will any express language explicitly stating that the devises and bequests made to the wife are in lieu of her rights to the exemptions. The case, therefore, presents a question of election by implication. The question is: Is it inconsistent .for the wife to ask for both her rights of exemptions and for the benefits bestowed upon her by the will? If she be given both, will she thereby disappoint the mill?
In cases of election by implication, especially as to community rights of the widow, it is well settled that: “Where a testator owns a partial interest in land and the disposal of the land is the subject of *422his will, it is only where the intention to treat and devise the entire land as his own is revealed by clear and unequivocal language that the will is to be construed as the disposition of more than his own interest, putting the co-owner of the land .to his election whether he will take under it because of its conferring upon him, by other provisions, some benefit from the testator’s estate which, but for the will, he would not receive.” Avery v. Johnson, 108 Tex. 294, 192 S.W. S42, 544, and quoted with approval in Dakan v. Dakan, supra. Haley v. Gatewood, 74 Tex. 281, 12 S.W. 25, is to the same effect.
It is quite clear, from the will, that the testator intended to dispose of his entire estate.
The opening paragraph of the will, after the formal part, reads, “and disposing of my entire estate as follows”; in paragraph 4, the testator wills “all my estate” to Porter Lindsley, in trust, for the “uses and purposes, as follows”; and in paragraph 5 the testator directs, “if necessary to carry out any of the bequests or provisions of this will, my trustee herein named is empowered and directed to sell all my property”, including “my Northaven Farms where I now live in its entirety.” Such language, however, includes only what was strictly his own. Avery v. Johnson, supra.
It does not clearly and conclusively appear from the whole will that the testator excluded the widow’s right, or interest, or estate, in a 200-acre homestead, nor in all the exempted personal property, not specifically disposed of.
Their is a difference between the rights of the widow to a homestead, from her rights to the other exemptions. The statutes made a difference. In determining whether an estate is solvent or insolvent, the exempted property, including the homestead, shall not be estimated or considered “as assets of the estate”; but, if upon settlement, the estate proves to be solvent, exempted property, “except the homestead”, shall be subject to partition and distribution. Arts. 3493 to 3496.
In the next place, a difference is noted in the will. A specific bequest is made of the testator’s library by giving the trustee specific directions how it is to be disposed of, after the widow has selected fifty volumes therefrom. Specific directions are also given concerning certain insurance policies. It would be inconsistent for the widow to claim these articles so specifically disposed of, and it would dissappoint the will to permit her to have these under her claim of exemptions.
In cases where the testator has, by the terms of his will, made disposition of the whole title by segregation of specific property, it necessarily implies that the lesser title or interest held or claimed by another is excluded therefrom. Such are the cases of Dakan v. Dakan, supra; Baldwin v. Baldwin, 134 Tex. 428, 135 S.W.2d 92.
But as to the 491 acres of land, there is a different situation. From the appellant’s pleadings, it appears that the whole 491 acres were of the same general character, and there could be carved therefrom a 200-acre homestead witholut interfering with the 50 acres willed to Porter Lindsley and the 10 acres willed to Charles Mc-Kamy. These are the only two tracts, besides the land given the widow, which are specifically appropriated and segregated. They are not definitely located, but there is a general description given so they can be described when selected by Porter Lindsley and Charles McKamy, - and it does not appear that this general description conflicts with 200 acres selected by the widow. At least the face of the pleadings do not show an irreconcilable conflict. But because the 50 and 10-acre tracts are so appropriated and segregated, that fact alone does not show conclusively that 200 acres could not be appropriated out of the remainder to make up a complete homestead.
Paragraph 3 of the will reads as follows: “I direct that my estate pay all estate and inheritance tax, to the end that all beneficiaries under this will take undiminished the gifts made by them by this will.”
The word “gifts” is italicized, because, in Carroll v. Carroll, supra, the Supreme Court said: “Every bequest imports a bounty, and is not, unconnected with other circumstances, to be taken as a satisfaction of a pre-existing incumbrance. A bequest to the wife is a voluntary gift, and does not ordinarily affect her legal right.” The testator in his will uses the word “gifts”. Clearly all the beneficiaries, not counting the members of the testator’s family, were made “gifts”. He made “gifts” to his children and grandchild. Why, then, should it be said that the benefits to his wife were in lieu of what she was entitled to by law.? Merely because the “gifts” to her are large is no reason not to call them “gifts”. This is but evidence of his devotion and affec*423tion, naturally flowing from a big hearted man. The will does not clearly and conclusively exclude her from the right to use and occupy a full 200-acre homestead.
But the homestead of 200 acres necessarily includes the residence. The pleadings show that the Northaven Farms, consisting of 491 acres, is not in a town or city, and that the testator and the appellant, as husband and wife, had their residence thereon at the time the will was made and at the time of his death. No written designation of the homestead had been made by the testator during his lifetime, setting forth the boundaries thereof, as he had a right to do under Article 3841 et seq. of the Statutes. Therefore, as the surviving widow, upon his death, in the absence of the question of election, she had the right to make the selection. In his lifetime he could not exclude from the homestead property “indispensable to the home”. Hanes v. Hanes, Tex.Com.App., 239 S.W. 190, 191, and authorities there cited. This “indispensable” part of the homestead would include the tract of 200 x 200 feet, given to appellant in fee, on which is located the residence and garage. The “gift” to her of a stronger title than she otherwise would be entitled to in this tract of 200 x 200 feet does not exclude the right to use enough of the 491 acres to make up the 200 acres.
The Constitution, Art. 16, Sec. 52, Vernon’s Ann. St., says that the homestead “shall not be partitioned”. In Hall v. Fields, supra, the court said: “We know of no law which would authorize the setting apart of a portion of the homestead, and do not so construe the constitution. It is treated as an entirety, and is not subject to partition.” And in Carter v. Randolph, 47 Tex. 376, 380, our Supreme Court said: “Being the homestead of the family, consisting of husband and wife, upon the death of the husband, the wife surviving, it is declared by the statute to be no part of the estate of the deceased husband. It follows, as a necessary consequence, that it remains the homestead of the wife. * * * Under the general tenor of our decisions, it must be held that it will continue to be her homestead as long as she needs and uses it for that purpose.”
The widow, of course, is not entitled to two homes. Such is the effect of the holding in Ellis v. Scott, Tex.Civ.App., 58 S.W.2d 194.
In the cases of Dunn v. Vinyard, Tex. Com.App., 251 S.W. 1043, and Bumpass v. Johnson, Tex.Com.App., 285 S.W. 272, there was express language in the wills, putting the wife to an election. In the case of Rogers v. Trevathan, 67 Tex. 406, 3 S.W. 569; and also in Upson v. Fitzgerald, 129 Tex. 211, 103 S.W.2d 147; Edsall v. Hutchings, Tex.Civ.App., 143 S.W.2d 700; and Cheatham v. Mann, Tex.Civ.App., 133 S.W.2d 264, there was specific appropriation of property by the testators in their wills which excluded the right of the co-owners therein. But in none of those cases was the surviving widow’s rights to have a homestead set apart to her defeated by force of the doctrine of election alone.
If the will does not state that its provisions for the widow are in lieu of homestead, it has been held that an election to take under the will does not deprive her of the homestead, unless it clearly appears from the will that such was the intention of the testator. 29 C.J. 999, Section 483; 69 C.J. 1103.
Under the terms of Colonel Lindsley’s will, Porter Lindsley -had two capacities. He was named as independent executor, and as trustee. Article 3314 of the Statutes, gives to him the duty as independent executor to recover possession of and hold the estate in trust to be disposed of in accordance with law. But there is excepted from his right of possession the property exempted by law. In his capacity as executor he takes the possession of the estate as it existed at the death of the testator. The title to the estate of the testator which vested immediately upon the death of the testator in Porter Lindsley, as trustee, was subject to the provisions of this statute as well as others governing administration of estates, and the provisions of the Constitution.
In acting as independent executor he was clothed with the duty to set apart the exemptions which rests upon the Probate Court in a case where the executor is not independent. Runnels v. Runnels, 27 Tex. 515; Roy v. Whitaker, 92 Tex. 346, 48 S.W. 892, 49 S.W. 367; Carlton v. Goebler, 94 Tex. 93, 97, 58 S.W. 829.
This leads us to the question: What is a person’s disposable estate ? The allowances for the widow and minor children are independent of the will. Woolley v. Sullivan, 92 Tex. 28, 45 S.W. 377, 46 S.W. 629. Article 8282 gives to a person the right to dispose o.f all of his property by will “subject to the limitations prescribed by law”. The right of the minor children and the *424widow to a homestead guaranteed by the Constitution “is a limitation prescribed by law” and cannot be taken away by a will. See Hall v. Fields, supra.
In Dakan v. Dakan, supra, it is stated that the homestead right is not an estate, but on equally as good authority it is held that a homestead right under the Constitution is an estate. Chief Justice Cureton in Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.2d 35, after reviewing the history and many decisions on homestead rights of the survivor, declares that it is an estate. So does Justice Critz in Sargeant v. Sargeant, 118 Tex. 343, 15 S.W.2d 589, at page 593. To the same effect are the cases of Cocke v. Conquest, 120 Tex. 43, 35 S.W.2d 673, 678 and Petrus v. Cage Bros., Tex.Civ.App., 128 S.W.2d 537, 538.
This court, in two cases, rather recently has said that the homestead rights could not be disturbed by a will. Buckner v. Buckner, Tex.Civ.App., 51 S.W.2d 769; White v. Sparks, Tex.Civ.App., 118 S.W.2d 649, 651. The command of the Constitution, Article 16, Section 52, is that it shall not be partitioned during the life of the surviving spouse or so long as the survivor elects to use it as a home.
In Scoby v. Sweatt, 28 Tex. 713, a testator disposed of all his property, worth about $60,000, by will, bequeathing to a grandson $1,200 cash and a slave. This was less than what the grandson was entitled to under the old forced heirship law. This law, in effect, provided that a man could not dispose of more than one-fourth of his property by will, in event the testator left children or their descendants surviving. The grandson sued to recover his share allowed him under this law. Defendants contended that plaintiff was put to his election, and as he had received the $1,200 bequeathed to him he should not recover any more. The Supreme Court overruled this contention, and held that his right to recover his portion, fixed by law, could not be defeated by the will, and he was not put to his election.
In view of the language in Article 3495 of the Statutes, which says that the homestead shall not be considered as assets of the estate, and of the foregoing authorities holding that the homestead right of a surviving spouse is an estate, the homestead rights of appellant were unaffected. The absence of clear and unequivocal language from the will showing an intent that the bequests and devises to the wife were made in lieu of the homestead, the appellant was not required to give up her right to use and occupy a complete 200-acre homestead in order to receive the “gifts” to her under the will.
Hence, I am of the opinion that the trial court erred in sustaining the demurrer upon the theory that the wife was put to her election.