On Motion for Rehearing.
Counsel for appellant reassert in their motion for rehearing that the court erred in holding: First, that the will of Mrs. Joanna McClelland conveyed a life estate in the property in question to Peter McClelland; and, second, that it erred in holding that he had abandoned his homestead rights therein, citing in support of the first contention two cases not hitherto referred to, each of which we have carefully considered. We believe, notwithstanding one of said authorities supports the contention of appellant, that the weight of authority is otherwise; a few of which We think is not amiss to add to those heretofore cited.
In 40 Cyc., at page 1615, par. 3, it is said:
“A gift of the use, possession or enjoyment of property for life or sometimes without limitation in time, gives a life estate. A right to live on the property for life creates a life estate in it” — citing numerous cases in support of the text;' among others, Lewis v. Palmer, 46 Conn. 454, which holds that there is no difference between the devise of real estate for life, and a devise of the use of such real estate for life.
See, also, 40 Cent. Dig. Subject, Wills, § 1411, p. 2014.
In Beall v. Drane, 25 Ga. 430, the devise was:
“I reserve the tract-for the use of J. W. during his natural life, or so much thereof as he can cultivate for his support, and at his death the same to revert back to my estate, but said land shall not be liable for the debts or contracts of the said J. W.”
It was held that this gave J. W. a life estate in the whole tract, to be used and occupied by him for cultivation only.
In Newman v. Willetts, 52 Ill. 98, a will read:
“I leave and bequeath all the property-of which I may die possessed to my said wife. This legacy is made in usufruct, and during the lifetime of my said wife; at her death the whole of it will revert to the children which I have or may have from said marriage.”
Held, that the widow on the death of her husband took a life estate which was subject to execution.
In Davidson v. ICoehler, 76 Ind. 398, the will directed that the use and occupation and the rents and profits of certain real estate should be allowed and paid for to the testator’s wife during her natural life, for her support and for the support and education of his minor son, and that after her death, and after such soh should attain his majority, the land should then be divided among the testator’s children then living, share and share alike. Held that, on the death of the testator in 1844 in the same month as that in which the will was made, the wife took a life estate and the children a vested remainder.
In Pace v. Burlingame, 75 Iiun, 432, 27 N. • Y. Supp. 674, it was held that only a life estate passes under a will which provides that:
“I give and bequeath to my wife, Johanna Jones, my real estate in the town of Willett, and appurtenances thereunto belonging, together with all my household furniture, or rather the use thereof during the period that she may live and remain my widow.”
In re Metcalf’s Estate [Sur.] 6 Misc. Rep. 524, 27 N. Y. Supp. 879, and In re Dawborn, Id., where testatrix devised to her husband, who was also the executor of the will, the use “of all my property, both personal and real,” and also provided that “I wish my property to be equally divided between my nephew and nieces” (naming them), held, that the executor took a life estate only, with remainder to the nephew and nieces.
In Schwartz v. Gehring, 7 Ohio Cir. Ct. R. 426, the words in a will “ T give, devise and bequeath to my wife, the use of all my real and personal property * * * to be used by her during her natural lifetime,’ ” creates a life estate in her, so that the income which she had accumulated therefrom at the time of her death belongs to her estate and did not pass under the clause of the husband’s will giving and devising after the *461deatli of bis wife “all my said real and personal estate.”
A devise of two rooms in a bouse, “desiring that W. may have a shelter for life,” gives W. an estate for life in the rooms of which she may make any disposition. It is not a mere easement for her personal convenience. See Wustlioff: v. Dracourt, 3 Watts (Pa.) 240.
In 40 Cyc. 1616, § 4, it is said:
“The gift of rents, profits or income for life, although not expressly limited for life, may create a life estate.”
The item in the present will “give and bequeath the homestead place to Peter McClel-land to be enjoyed by him as a home to live at for and during his natural lifetime,” etc. It would seem unquestionable, in view of the authorities above cited, that a life estate was created by said will, and not a mere personal use, as appellant contends. Under this clause of the will, Peter McClelland and his family moved into the property shortly after said will was probated, and lived there until 1909, when he left the state and moved with his family to California, where they still reside; after which he brought a suit in the Circuit Court of the Western District of Texas, claiming to be a citizen of California, which suit is still pending and being prosecuted by him. This, we think, shows an abandonment of his homestead rights. The question of abandonment is one for the determination of the jury or the court, in the absence of a jury, under all the circumstances of the case.
It has been held that the removal of a debtor and his family from his homestead without intention to return will destroy the right of exemption, although a new homestead is not acquired. 21 Cyc. 599, 600. See, also, Texas cases cited in notes 40 and 41 thereunder.
Where the owner of a homestead removes from the state, intending to change his place of residence, he thereby forfeits his exemption in the land upon which he resided. See Knox v. Yoe, 91 Ga. 367, 17 S. E. 654; Trawick v. Harris, 8 Tex. 312. It is true thatemporary absence due to necessity, or such absence for purposes of business, pleasure, or on account of health or sending children to school, etc., will not forfeit such right. 21 Cyc. 600, 601. But if the absence is prolonged it may, however, where there is no fixed intention to return, constitute an abandonment. See 21 Cyc. 602, 603.
Generally, abandonment is almost entirely a question of intent, and does not depend upon the homesteader’s doing or not doing particular acts. 21 Cyc. 603. The intent may be gathered, however, from the facts and circumstances attending the removal or absence from the homestead, as well as from the express declarations of the homesteader himself.
It is said in the same authority (page 605) that a prolonged absence will not raise a conclusive presumption that the homestead has been abandoned; but when such absence is continued for a number of years, and there is no act or circumstance which shows an intention to return and occupy the homestead, the length of absence may become a controlling circumstance. In most cases where abandonment is the issue, the person claiming the homestead exemption has usually returned with the view and for the purpose of asserting his homestead rights in the property supposed to have been abandoned; and in such cases the evidence either showed a temporary removal, or circumstances negativing the fact that the party intended to permanently abandon the property.
In the present case, Peter McClelland had not returned; he is still absent with his family in California; he is still asserting that he is a citizen of said state by the prosecution of the suit mentioned in the federal court; he is not even a party to this litigation, and, so far as the record discloses, has no intention of returning to Texas or asserting any homestead right in this property. He has been absent from the state since 1909. Soon after his removal he filed the suit in the federal court declaring that he was a citizen of California. This declaration may be regarded as continuous, since he is still prosecuting the suit as a citizen of California. There is nothing in the record to controvert the fact that his residence there is intended as permanent, and that he has abandoned his homestead in Texas. It does not even appear from the record that Mc-Clelland authorized appellant Johnson to assert homestead rights for'him. The trial court has found, under these circumstances, that Peter McClelland had abandoned his homestead right in the property, and that the same is subject to levy and sale, and we do not feel disposed to disturb such finding. To hold otherwise would be to thrust the benefit of homestead upon one not asserting such claim.
The appellant for the first time has suggested' in his motion for rehearing that the property was sold for an inadequate price. This is not regarded as material, however, since the purchasers only obtained á life estate in the property, which may terminate at any time. The record indicates that Peter McClelland is no longer a young man. Besides, the will requires him to keep the property insured, pay the taxes, and keep the same in repair, which is a considerable charge within itself, especially when it is recalled that the property only brings a revenue of $50 per month, which may of itself furnish sufficient reason, if any is necessary, for his abandoning it as a home.
For the reasons indicated, we think the motion for rehearing should be overruled, and it is so ordered.
Motion oyerruled.