On Appellee's Motion for Rehearing. It appears from the record that Mrs. De Ross was one of seven children who, together with their mother (the community survivor), constituted the family entitled at one time to the homestead rights in the property afterwards destroyed. The question of homestead was not mentioned in the pleadings, but it is inferable from the evidence that Chas. H. Stafford held the legal title to the property at the time of his death in 1913; that he was survived by his wife and their seven children, who continued to occupy the property as a homestead until 1923, when they moved from the premises and never returned thereto. Five years later the dwelling was destroyed by the fire in question. Mrs. De Ross, a widowed daughter, one of the constituent members of the family, had procured the issuance of a policy of insurance upon the dwelling, in the sum of $1,000, payable to herself individually and exclusively, and, when the property was destroyed by fire in 1928, she instituted this suit individually to recover the amount of the policy in her own behalf. Before the cause was tried, Mrs. De Ross died, whereupon her mother and brothers and sisters were substituted as plaintiffs and prosecuted the suit as the sole surviving heirs of Mrs. De Ross, who, it was alleged, died "intestate, left no debts and no necessity for administration exists." It was further alleged that Mrs. De Ross's mother was entitled to one-half and each of the other substituted plaintiffs one-sixth of whatever sum might be recovered.
Appellees have presented a very able and earnest motion for rehearing, contending *Page 927 that the interest of Mrs. De Ross was that of "sole and unconditional ownership" of the property destroyed, within the terms of the insurance policy, because that property constituted a homestead and Mrs. De Ross was one of the constituent members of the family enjoying the homestead rights in the property. In support of their contention on rehearing, appellees cite the cases of Horn v. Arnold, 52 Tex. 164; Givens v. Hudson, 64 Tex. 473; Hoyle v. Ins. Co. (Tex.Com.App.) 14 S.W.2d 816; East Texas Ins. Co. v. Crawford (Tex.Sup.) 16 S.W. 1068; Rolater v. Rolater (Tex.Civ.App.) 198 S.W. 391. When the opinions in those cases are analyzed with reference to this case, however, they do but declare the well-settled rules relating to homestead exemptions, defining the constituents of the family entitled to homestead rights, and establishing the insurable interests of husband and wife, and of community survivors. There is no intimation in them that the insurable interest of any constituent member of the family other than the surviving spouse is that of "sole and unconditional ownership" of the property constituting the homestead.
Appellees' contentions on rehearing are in effect the same as those set up in their brief, and copied with approval in the original opinion herein, as follows:
"Where property is owned and is a homestead, the surviving widow, on the death of her husband although she owns only an undivided interest in the property, has an insurable interest in it. Hoyle v. Republic Ins. Co. (Tex.Com.App.) 14 S.W.2d 816; East Texas Insurance Co. v. Crawford (Tex.Sup.) 16 S.W. 1068; Rolater v. Rolater (Tex.Civ.App.) 198 S.W. 391.
"A widowed daughter living with her mother is entitled to a homestead and has an insurable interest. Childers v. Henderson, 76 Tex. 664,13 S.W. 481.
"A homestead is not subject to partition. Hall v. Fields, 81 Tex. 562,17 S.W. 82.
"Possession of one tenant in common is in right of all the other owners. Phillipson v. Flynn, 83 Tex. 583, 19 S.W. 136.
"The survivor is entitled to the use of the home. Adair v. Hare,73 Tex. 275, 11 S.W. 320."
It may be readily conceded, as therein contended by appellees, that the surviving widow has an insurable interest in the family homestead; that a widowed daughter living with her mother in the family homestead has an insurable interest therein proportionate to her estate therein; that a homestead is not subject to partition as long as it is occupied and claimed as such; that the possession of one tenant in common inures to the benefit of his fellow tenants; and that the survivor in community is entitled to the use of the home. But those rules are all quite beside the question presented and decided in this case, and that is, that the insurable interest of a child of a deceased member of the community, and of the surviving spouse, possessing an inheritable undivided one-fourteenth interest in property once occupied by the family as a homestead, but not so occupied or claimed for a period of five years, is not that of sole and unconditional ownership within the contemplation of the provisions of the insurance policy here in question.
It should be added that it is obvious from the record that the amount of insurance provided for in the policy and made payable to Mrs. De Ross far exceeded the value of her inheritable interest in the property insured.
Appellees' motion for rehearing must be overruled.