(dissenting).
There are two questions in this case. One, whether the property in suit was ever the homestead of Mildred Simank and her husband, Elmo Simank, and, two, if so, had it been abandoned by Mildred Simank after the death of her husband. I do not reach the latter question.
The subject property was the separate property of Elmo Simank who married Mildred Hicks on December 24, 1959. Elmo Simank died intestate June 4, 1963.
When Elmo Simank married he was living with his sister, Mrs. Adella Mueller in Manor, Travis County.
All of the testimony offered to show that this property was the homestead of Mr. and Mrs. Elmo Simank is the following:
There was a habitable house on the farm, also a hen house and barn.
Mrs. Mueller testified that Elmo was in possession of the land at his death, and he had planted some crops on it.
The evidence is undisputed that Mr. and Mrs. Elmo Simank lived in Austin from the time of their marriage until 1961 when they moved, and I quote her testimony:
“Q All right. In January of ’61, where did you move ?
A I moved to one and a fourth miles northwest of Thorndale.
Q On what place?
A On a farm.
Q On this 67.9 acres ?
A For a little while..
Q Where did you live there, at that time?
A Beg your pardon ?
Q Did you live on the farm at that time?
Yes. >
How long did you live there? o
Where? >
On the farm. o
As soon as, we moved to the other house as soon as we could— >
You lived at the house of your mother-in-law, Mrs. Ella Simank? a
No. We did not live with her. <
You did not live with her? Did you ever live there ? a
On which farm ? <
On Mrs. Ella Simank’s farm, her home. a
Yes. We lived there from January of ’61 until June of ’63. <
January of ’61 until June of ’63 you lived in the home of Mrs. Ella Si-mank? a
A Yes.
On a farm in Williamson County? iO
Yes.” >
(Reference is here made to the testimony of Mrs. Simank quoted in the majority opinion)
“Q Have you ever claimed this 67.9-acre tract as a home ?
A Yes, we did.
Q Have you claimed it as your home since Elmo’s death.
A Not that I know of.
Q Not that you know of.
A I don’t know.
*239Q You don’t know whether you have claimed it as a home or not ?
A No.
Q And what years did you claim it as a homestead, then, before his death?
A I think he claimed it in 1961 and 1962.”
Art. 16, Sec. 51 of the Texas Constitution, Vernon’s Ann.St., provides, in part, that the property claimed as a homestead “shall be used for the purposes of a home.” In speaking of this provision the Court in Cocke v. Conquest, 120 Tex. 43, 35 S.W.2d 673, Tex.Comm. of App. (1931) said:
“The framers of our organic law had no thought of exempting 200 acres of land in the country as a home for each family, upon which its members might reside, when they thought proper, but this exemption is only in the event such lands are used for the purpose of a home. The exemption is not of any definite number of acres, but of the home, and the number of acres is a limitation placed upon that home.”
In Ratliff v. Smith, 178 S.W.2d 138, Tex. Civ.App. El. Paso, writ ref. (1943) the Court stated:
“The homestead of the family is initiated by the dedication thereof by the head of the family. Dedication of a rural homestead is accomplished by occupancy thereof by the head of the family as a place of residence and the use thereof for the support of the family.”
The occupancy of the farm testified to by Mrs. Mildred Simank was, by her own admission transitory and only until she and her husband could move into his mother’s house. At most, this occupancy could only have been for a few days. This, in my judgment, was not occupancy as a place of residence, a residence being defined as an “Act or fact of abiding or dwelling in a place for some time; act of making one’s home in a place.” Webster’s Int. Diet. Second Ed., unabridged.
Just when the Simanks did the repairing on the farm house is not shown. While the law is that homestead rights may be acquired prior to occupancy, such rights must be based on an intention to occupy evinced by overt acts indicating such intention followed by actual occupancy within a reasonable time. Gardner v. Douglass, 64 Tex. 76 (1885); Parsons v. McKinney, 63 Tex.Civ.App. 617, 133 S.W. 1084 (Texarkana, writ ref. 1911); Gillette v. Davis, 296 S.W. 658, Tex.Civ.App. Eastland, no writ (1927).
The majority implies that the repairs to the house on the farm were made in 1960. If this assumption be accepted then these acts may have been sufficient to show an intent to occupj. the house as a home. The fact is, however, that it was never so occupied and the record contains no evidence that any acts were performed by the Simanks during the approximate three years they lived with Mrs. Ella Simank indicative of an intention to so occupy it. This three year wait is, in my opinion, an unreasonable period within which to occupy the farm as a home following the 1960 repairs.
The majority quotes from appellants’ brief to the effect that appellee might have a homestead interest in their one-half interest in the lands except that she had abandoned it. This statement is inexplicable because the tenor of their brief is to the contrary and the case cited by them does not involve the issue of whether certain property was occupied as a homestead. I do not believe appellants intended to brief themselves out of this case or that their brief should be so construed.
The burden was on Mrs. Mildred Simank to establish her homestead rights in this farm. I believe that she failed to discharge this burden and that this cause should be reversed and remanded since it is obvious that it has not been fully developed. I respectfully dissent.