Statement of the Case.
RICE, J.This suit was brought by appel-lees against appellant Johnson to recover the title and possession of a certain house and premises, consisting of, about 10 acres of land, situated in the city of AVaco, wherein judgment was rendered in favor of appellees, from which appellants have prosecuted this appeal. It was tried as an agreed case under the statute (article 1949, Vernon’s Sayies’ Civ. Stat.), and involves: First, the construction of item 9 of the will of Joanna McClelland, deceased, whereby she devised said premises to Peter McClelland; and, second, whether he had abandoned his homestead rights therein at the time of the levy of the execution and sale thereunder to appellees.
Mrs. Joanna McClelland, who died on the 27th of January, 1897, during her lifetime was the owner in fee simple of the land and premises sued for and described in appellees’ petition; and by her last will and testament, which was duly probated in the county court of McLennan county on the 5th day of May, 1897, she made the following disposition of said property.
“Item 9. I further give and bequeath to my said beloved stepson, Peter McClelland, my homestead place to be used and enjoyed by him as a home to live at for and during his natural life, he to keep the taxes and insurance paid thereon and make all needful repairs, and remainder over upon his death to the issues of his body bom in lawful wedlock. In default of such issue, then the same shall revert to my general estate disposed of as hereinafter provided.”
Item 10 of said will provides as follows:
“I hold divers and sundry notes against my said stepson. Peter McClelland, which notes I paid off as security to protect him, and which judgments I paid off to further protect him, which I desire my executor to cancel and surrender to Mm on my death, amounting to about $25,000 at this time.”
Item 11 provides that:
“All the residue of my estate I may die possessed of after satisfying the foregoing judgments, I bequeath to Jno. K. Rose, my executor hereinafter named, to be held by him in trust, however, for and during the natural life of my said stepson, Peter McClelland for the following named uses and trusts, to wit: Out of the revenue thereof my said executor shall pay taxes and keep the buildings belonging to said estate insured, and shall pay the premiums thereon, and shall pay all necessary costs and expenses to preserve this estate, that in his judgment may be necessary, and may employ attorneys for that purpose and pay the same, and shall make all necessary repairs and improvements to keep the property in good condition to rent, and may retain ten per cent, on all monies received and paid to him for his trouble in the care of my estate; and further sum of ten per cent, of all the revenues of said estate shall be set aside as a contingent fund until such contingent fund shall amount to the sum of $5,000, and in such manner such contingent fund shall be kept up, and then such contingent fund shall be loaned yearly on good security and such terms as my executor shall think best, which contingent fund shall be held in reserve by said executor to aid in rebuilding the property, should any of said property be destroyed by *459fire or otherwise, so as to keep up the revenues of my estate; and the residue of said revenues and income of my estate shall be paid over by my executor to my said stepson, Peter McClel-land, monthly as the same may accrue, to be used and enjoyed by him as he may see fit as long as he may live; and upon his death my said executor shall turn over all that remains of my said estate then in his hands or under his control to the issue of the body of my said stepson. Peter McClelland, born to him in lawful wedlock, and in default of such issue all of my estate in the hands and under the control of my executor shall pass as provided in item 12, the next clause hereinafter in this will.”
Item 12 provides that:
“Upon the failure of isssue of the body of said Peter as provided in item 11 herein, and upon his death as aforesaid, I bequeath to the city of Waco all the remainder of my estate so in the hands of my executor or under his control, to be used or sold and converted into money, at the discretion of said city, for the following purposes; To build, establish and maintain a ward or wards as a part of the city hospital of the city of Waco, connected therewith, or at a separate place in said city, to be called the ‘Joanna McClelland Ward,’ for the sole use of females entitled or to be used under the ordinances of the city of Waco to entry and care therein, requiring only of the city of Waco and its proper discretion in the use and application of this bequest in a spirit of charity.”
By item 13, John K. Rose, one of the parties to this suit, was appointed executor without bond, for the purpose of carrying out the provisions of said will. The property sued for herein, with improvements, was shown to have been of the value of $20,000, the improvements consisting of a two-story brick building, servant houses, outhouses, stables, barns, fences, etc., and were of the value of $10,000; and such property was of said values, respectively, when Mrs. McClelland died, and when the said Peter moved thereon, the rental value of which was $50 per month.
Peter McClelland, who has a wife and two stepdaughters, but no children of his own, moved with his said family into said property about the 5th of May, 1S97, and lived thereon as his home until about the 1st day of January, 1909, when he with his wife and her said daughters left said property and moved to the state of California, in which state he has since resided; that he on his removal brought suit in the federal court at Waco, in the Western district of Texas, describing himself as a resident citizen of California, and that said suit is still pending and being prosecuted.
Plaintiffs in this action, Isaac A. Goldstein and Louey Migel, suing as partners under the firm name of Goldstein & Migel, recovered judgment in the county court of McLennan county on the 10th of March, 1892, against said Peter McClelland for the sum of $572.16, the costs of court and interest on said judgment at 10 per cent, per annum, which judgment was kept alive by the timely issuance of executions. On the 4th of February, 1913, said parties purchased said property at sheriff’s sale for the sum of $100, which, after satisfying the costs, was credited upon the execution, and the sheriff made to them a deed to said land and premises, conveying to them all the right, title, and interest which the said Peter McClelland owned or possessed therein on January 15, 1913, which deed was thereafter duly recorded in the deed records | of McLennan county. At the time of the ex- ; eeution of the will of Mrs. Joanna McClel- ! land, Peter McClelland was insolvent, with ! several judgments outstanding against him, . which was known to her. That the defendant ; Johnson, at the time of the levy of the cxeeu- [ tion and sale above referred to, was in posses-I sion of the property, with the knowledge and consent of Peter McClelland.
Opinion.
It is insisted by appellants that said i null vested no title or estate in said property i in Peter McClelland, but only conferred upon j him the right of personal use thereof, and i that therefore appellees acquired no title by reason of said sheriff’s sale and purchase i thereunder. It is, however, admitted by ap- . pellants that a devise of the use and occupa- ' tion of land passes an estate therein, and that it is not confined to a personal use and i occupation of the property, unless the context | of the will clearly calls for a more limited ' construction, which they contend, however is ; the case here. See Jarman on Wills (6th Am. Ed.) 759; Schouler on Wills, 503; 40 Cyc.; 1537, 1572; Maeck v. Nason, 21 Vt. 115, 52 Am. Dec. 42. It is true that in construing a ! will all of its provisions should be looked to for the purpose of ascertaining the real intention of the testator. We believe that item 9 conveyed a life estate in said property to Peter McClelland, and that there is nothing in the subsequent clauses of the will, all of which, pertinent hereto, have been hereinbe-fore set out, that would defeat this construction; but, on the contrary, we think said clauses tend to support and uphold this view. By a subsequent clause of the will the bulk of the property had been given to Rose, in trust for the benefit of said Peter during his natural life, directing, however, that the revenues arising therefrom should be used by said trustee: First, for the purpose of preserving the property and providing for a contingent fund to restore the same in the event of loss; and, second, he was directed to pay the residue of said revenues and income, less certain commissions, to Peter McClelland, for his personal use and enjoyment. Having by item 9 given Peter the homestead, which she must have known under the law could not have been taken from him for his debts unless he should abandon it, she then provides for his maintenance and support during his life by item 11; so that, when we construe these two items together with other sections of the will, we must conclude that it was her evident intention to convey an absolute life estate, rather than a mere personal use in this property, to Peter. We therefore overrule the first assignment.
The homestead becomes tbe subject *460of sale, if the same is abandoned. See Cline v. Upton, 56 Tex. 319; Reece et al. v. Renfro, 68 Tex. 192, 4 S. W. 545; Woolfolk v. Rickets, 41 Tex. 362; McElroy v. McGoflin, 68 Tex. 208, 4 S. W. 547. See, also, authorities collated in Harris’ Constitution, art. 16, § 51, p. 853, under the head of Abandonment. We think the facts above recited show that, at the time of the levy upon and sale of his property, Peter McClelland had moved from the state of Texas, and had become a citizen of the state of California; for which reason said property was subject to levy and sale. Peter McClelland is not a party to this suit, and is not resisting it in person; nor does it appear that he authorized Johnson (who may be regarded as his tenant at will) so to do, for which reason appellees insist that the question of homestead is a personal privilege to be exercised only by the homesteader himself, and that this defense cannot be made by another for him. While this contention is plausible, yet no authority is cited in support thereof. This doctrine, however, seems to have been held in many states with reference to exemptions as to personal property (see 18 Cyc. pp. 1468B and 1469); but we know of no decision, and have been referred to none, applying it to homestead exemptions in this state; but, as a determination of this question is not necessary to a decision of this case, we do not undertake to pass thereon. Believing, however, that at the time of the levy, sale, and purchase thereunder the property had been abandoned as a homestead by Peter McClelland, and that the homestead exemption no longer obtained in his favor, appellants’ second assignment must be overruled, and the judgment of the trial court sustained. It is therefore in all things affirmed.
Judgment affirmed.