Benjamin F. Sargeant, hereinafter called B. F. Sargeant, and his daughter, Mrs. Maude E. Weatherford, joined pro forma by her husband, C. E. Weatherford, W. H. Sargeant, the son of B. F. Sargeant, and Mrs. Carrie Brown, a daughter, joined pro forma by her husband, Herbert Brown, filed a partition suit against Mary Louise Sargeant, the granddaughter of B. F. Sar-geant. The property involved is a 40-room building and the lot upon which it is situated, in the city of Fort Worth, built and used for
*383a rooming house. The evidence shows that the property had been sold for $45,000, and the purpose of this suit is to determine the amounts which should be adjudged to each of the litigants. The property was acquired during the married life of B. F. Sargeant and his wife, Mary Jane Sargeant. They were' married in 1880, and had six children, two of which died in infancy, or without issue, and a son, George F. Sargeant, died in 1918, leaving a minor child, the defendant. It is agreed that B. F. Sargednt is the owner of one-half of said land and premises, and that the other three plaintiffs and the defendant is entitled to one-eighth each. The only controversy is as to whether charges and claimed expenses alleged to have been paid by B. F. Sargeant subsequent to his wife’s death were chargeable to the other cotenants. These expenses consist of a note made by B. F. Sargeant and his deceased wife in 1917 to Mrs. Sallie Culberson, for the purpose of paying back taxes, in the sum of $2,636.94. Subsequent to the death of his wife, and on May 15, 1920, B. F. Sargeant paid off said note, together with all interest thereon, the total amount being $3,264.32; said note was paid out of the proceeds derived from the rents and revenues from said property subsequent to the death of Mary Jane Sargeant, and while B. F. Sargeant was occupying the same as a homestead. A number of items, such as an item of $147.50 for roofing; $180 for the installation of an automatic heater; $400 for the installation of a fire escape for said building; fire insurance for several years, and state, county, and city taxes for the years intervening between the death of Mary Jane Sargeant and the filing of the suit set out, amounting in the aggregate to the sum of $8,733.03. It is agreed that each and all of said items was-paid by B. F. Sargeant out of the rents and revenues derived from the property sought to be partitioned, and which accrued during the time that he occupied the same as a homestead. It is further agreed that the following amounts were received and collected and paid out' by said B. F. Sargeant during the time he occupied the said premises as his homestead, and that the same were received and collected by him as rents from said property, to wit: $3,990 received, and $3,461.84 paid out; that the total amounts aggregated $26,136.34 received, and $24,195.79 paid out.
It is further agreed that the further items were necessary expenses, and were paid by the receiver appointed out of the proceeds of the sale of said property; $628.01, city taxes due and unpaid on said property for the year 1925"; $559.20, city taxes due and unpaid on said property for the year 1926; $263.40, state and county taxes due and unpaid on said property for the year 1926; $259, taxes accrued for the year 1927, up to the time of the sale; $46.25, court costs in this case; $5 for bringing the abstract of title down to date.
It is further agreed that the receiver received from the purchaser the sum of $45,000 for the property involved in this suit, included in which was certain property to be taken by the plaintiffs herein, all of whom are adults, in lieu of money, at the price of $20,-000, and upon which there had accrued, as taxes, at the time of the sale, and which the said purchaser paid to the receiver, the sum •of $106.97.
The court awarded a partition, and held that the rents and revenues during the year 1926, collected and expended by B. F. Sar-geant, exceeded the combined amount of the taxes, city, county, and state, existing against said property, and that said taxes would be a charge against the interest of said B. F. Sargeant, and should not be accounted for from the proceeds of the sale) of said property, and would not be a charge against the interest of the other heirs; that, after deducting from the amount paid by the purchaser, to wit, $45,106.97, said amounts of $559.20 and $259, the'same being said taxes paid by the receiver for the years 1926 and 1927,' and the sum of $263.40, the amount of county and state taxes paid by said receiver for the year 1926, and the sum of $46.25, the amount of court costs paid by the receiver, and the item of $5 for bringing the abstract of title down to date, a balance of $43,974.12 is left to which the minor defendant is entitled to one-eighth; that out of the amount allowed the minor defendant the fee of the guardian ad litem should be paid, leaving the amount due the said minor defendant $5,496.77, less $150 payable to the guardian ad litem.' From this judgment the plaintiff B. F. Sargeant has appealed.
Opinion.
Appellant wants to keep the rents collected, and yet charge the other cotenants with the taxes, insurance, and other expenses incurred during the years subsequent to his wife’s death. The evidence shows without contradiction that no dependent member of the family' of appellant lived with him in his home subsequent to his wife’s death. Therefore the rents, not being used or necessary for the support of the family, did not constitute appellant’s separate property, and the interest of the other heirs in the homestead were not affected by such occupancy. Article 16, § 52, of the Constitution, reads as follows:
“On the death.of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving *384husband or. wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having jurisdiction, to use and occupy the same.”
The surviving husband or wife, so long as he or she elects to use or occupy the homestead as such, has the right to use and occupy the same. Brau v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485.
In Mattingly v. Kelly (Tex. Civ. App.) 124 S. W. 483, it was held that a surviving husband is entitled to the use and occupancy of the homestead, and, so long as it remains his homestead and contributes to the support of his family, he is entitled to the rents thereof as his separate property; and, where he uses the same in paying a community debt, constituting a lien on the homestead, and taxes thereon, he is entitled to reimbursement therefor out of the community estate. But the last conclusion noted has been modified. Higgins v. Higgins, infra. It is held in Woods v. Alvarado State Bank (Tex. Oiv. App.) 275 S. W. 187, where there is no family, there is no homestead exemption. The homestead, with privilege of exemption from execution, is not an estate in land, but is a mere immunity growing out of existence of certain conditions.
The trial court found that the property of appellant and his eotenants was used by him and constituted his business homestead. Appellant alleged and claimed that the rentals from his rooms constituted his only means of livelihood. The court found that the rents received and collected after the death of Mrs. Sargeant aggregated about $2,000 more than the amounts paid out.
In Simms v. Hixon (Tex. Civ. App.) 65 S. W. 36, affirmed by the Supreme Court in 65 S. W. 35, it is held that, where the probate court sets apart the homestead and other exempt property of the deceased to the widow and children of the decedent, such order withdraws such property from administration, but does not affect the rights of those owning the property.
To use and occupy the homestead within the meaning of article 16, § 52, of the Constitution, does not require a residence upon it, and, when left either from necessity or convenience, no matter for how long a time, if it contributes to the support of the family, it remains the homestead. Foreman v. Meroney, 62 Tex. 723; Flynn v. Hancock, 35 Tex. Civ. App. 396, 80 S. W. 246; Powell v. Naylor, 32 T,ex. Civ. App. 341, 74 S. W. 338; Hall v. Fields, 81 Tex. 558,17 S. W. 82.
The surviving husband or wife is entitled to occupy the homestead after the death of the other spouse, so long as such survivor may choose to occupy it; and occupancy thereof is expressly required only as against the right of descendants of the deceased to have a partition of the property. Schneider v. Bray, 59 Tex. 668; Bell v. Schwarz, 37 Tex. 572; Kessler v. Draub, 52 Tex. 575, 36 Am. Rep. 727; Blum v. Gaines, 57 Tex. 119.
The community homestead passes to the survivor, free from debts of the community, and, on the death of the survivor, descends to her or his collateral heirs, free from liability for such debts. Cameron v. Morris, 83 Tex. 14, 18 S. W. 422. The rents of a business homestead are not exempt from execution against the owner. Hinzie v. Moody, 13 Tex. Civ. App. 193, 35 S. W. 832, writ of error refused.
In Higgins v. Higgins, 61 Tex. Civ. App. 41, 129 S. W. 162, opinion by Chief Justice Conner of this court, it is said that, on partition of the community estate after death of the wife, the husband may not be allowed for permanent and valuable improvements made by him, after her death, on the homestead; an undivided half interest in the community estate vesting in the wife’s surviving children on her death, so that they and he became joint tenants, and one joint tenant having no right, without the consent of the others, to so improve the community property, except when necessary for its preservation. Where a joint tenant has improved common property, the court will on partition, provided it will not injure the others, apportion the part bearing the improvements to the one making them. The court said:
‘‘So, too, we think the court erred in allowing appellee the items for improvement on the homestead aggregating $583. Upon the death of the wife an undivided one-half interest in the entire community estate was by statute vested in the surviving children of the deceased wife. They therefore were in the position of joint owners and tenants with W. A. Higgins, and we know of no principle of law which will authorize one joint tenant, save by the consent of his co-tenants, to place permanent and valuable improvements upon the common property, except when necessary for its preservation. To so hold would be, in effect, to empower one joint tenant to impose upon his co-tenant burdens that they neither desired, nor had it in their power to meet. It is a familiar principle of equity, however, that in case a joint tenant has made improvements upon common property the court will in partition, if it can be done without injury to the remaining owners, set’apart the improved property to the tenant making the improvements, and it may be that in the case before us appellee may be thus afforded the full benefit of the improvements mentioned.”
In the above case the court held that the survivor should not be allowed compensation for his services in looking after the communi*385ty estate, after demand for partition was made, and after refusal on his part to accede to the demand.
Since the evidence shows that the appellant has occupied at least a room in the homestead since his wife’s death, and has collected all the rents and revenues therefrom, and has collected rents and revenues largely in excess of what he has paid out for taxes, insurance, etc., we think the court did not err in refusing to adjudge any part of these expenses against the minor defendant. And in so holding we are not unmindful of the fact that the minor defendant pleaded the statute of limitation against all of the expenses incurred prior to two years before the filing of the suit. The largest item, to wit, the loan made by Mrs. Culberson of the sum of $2,636.94, was paid in 1920, some seven years before the filing of the suit. We do not pass upon the question as to whether or not said plea would be good as to many of these items, but do conclude that the court, in the exercise of his equitable powers, rendered a just judgment.
The judgment is affirmed.