(concurring).
I concur in the splendid opinion in this case by Associate Justice Fanning. It is exhaustive, and, in my opinion, thoroughly discusses the controlling questions raised by the parties on the appeal. In my opinion, the case of Autry v. Reasor, 102 Tex. 123, 108 S.W. 1162, 113 S.W. 748, by Chief', Justice Gaines undoubtedly is' controlling here, to the effect that there must be some use for the family of the separated tracts of land to constitute them a homestead tin-,' der the Constitution. Mrs. Vatighn having alleged that the several tracts of land constituted the homestead of her and her deceased husband, the burden rested with her, under the numerous authorities cited in Justice Fanning’s opinion, to prove by competent evidence that the use to which the property was put during the lifetime of her late husband, was such as would impress the 48-acre tract with homestead character. Appellant in this case made an attempt at proving a use that would impress the 48-acre segregated tract with homestead character. The trial of this case was before the court without a jury; therefore, he became the trier of the facts at issue between the parties arid he also was a judge of the credibility of the witnesses and the weight to be given their testimony. The appellant was an interested witness and the trial court was not compelled to believe her téstimony even if she had testified to the homestead uses of the property. At best, her testimony raised only an issue of fact tó be decided by the trial judge. In this' case, as pointed out by Justice Fanning, 'the trial court resolved all facts with respect to the homestead character of the 48-acre' tract against appellant and in favor of appellee. This he had a right to do, and wé would not be warranted in overturning his finding in this matter.
Therefore, it. is my opinion that the opinion of Justice Fanning correctly determines the issues of this case, and I agree with him completely in the affirmance of the judgment of the trial court.