(concurring).
“It must be candidly admitted that declarations of law on this subject (homestead property) contained in opinions by eminent justices cannot be reconciled with declarations in other opinions by justices of like eminence. * * * ” (parenthesis supplied) Thompson v. Kay, 124 Tex. 252, 77 S.W.2d 201 (1934, Justice Greenwood).
The trial court erred in requiring the widow of the deceased to make the purchase money mortgage payments on the homestead property as a condition precedent to her receipt of such exempt property as her homestead. This homestead was purchased by the deceased prior to this marriage and the only lien against it was the purchase money mortgage. The deceased devised his property, including this homestead after the payment of all his just debts, to his two married daughters by a previous marriage and named them co-independent executrixes under his will. The title to this property is in the deceased’s daughters subject to the indebtedness owed by the estate. Art. XVI, Sec. 52, Texas Constitution, Vernon’s Ann.St. This property being the designated homestead of the deceased and the surviving widow, is subject further to the homestead right of the surviving spouse so long as such widow qualifies the property as a homestead. See Sec. 277, Texas Probate Code.
The majority opinion of this Court holds as I take it, that because of this indebtedness this property is unsuitable as a homestead and is an incomplete homestead as a matter of law; therefore the widow is entitled to elect not to take this previously designated homestead and can elect to take an allowance in lieu thereof. I cannot agree with this holding.
It is true that a widow is not required to take an incomplete homestead and this may be determined by the court as a matter of law. It is also true that a widow may not be required to accept an unsuitable homestead, but this is a matter of fact to be determined by the court or jury. See special issues submitted in Cooper v. Cooper, 168 S.W.2d 686, n.w.h. Here the trial court impliedly held the property was suitable. I would not hold that just because there exists a constitutionally exempted lien against the property (even though it might be large), that, this alone would make the homestead unsuitable as a matter of law. Miller v. Miller, Tex.Civ.App., 230 S.W.2d 237, reversed on other grounds, 149 Tex. 543, 235 S.W.2d 624 (1951).
*896It may be appropriate to again reiterate the dosing remarks made by Brady Cole in his article in 3 Texas Law Review 217:
“ * * * the homestead provisions of our present constitution have created in our law many anachronisms, anomalies, and paradoxes which, being beyond the solution of the bench as well as the bar, should receive the attention of a constitutional convention whenever one is called. If these inconsistencies and incongruities can really stand together, then is the famous dictum of Lord Tennyson to the effect that ‘the law is a wilderness of single instances,’ no longer obiter.”