| Mass. | Sep 15, 1867
A right of homestead, under our statutes, is a freehold estate, defeasible, during the life of the householder, only by deed in which his wife, if any, or, if she is insane, her guardian joins, or by acquiring a new homestead. Gen. Sts. c. 104, §§ 1, 2, 7, 8. Silloway v. Brown, 12 Allen, 30. Kerley v. Kerley, 13 Allen, 286. Woodbury v. Luddy, 14 Allen, 1.
By the Gen. Sts. c. 104, § 12, “the estate or right of homestead of any householder, existing at his death, shall continue for the benefit of his widow and minor children, and be held and enjoyed by them, if some one of them occupies the premises, until the youngest child is twenty-one years of age, and until the marriage or death of the widow, and shall upon the death of such householder be limited to that period; ” and, by § 13, it may be set off to the parties entitled thereto in the same manner as dower. Where there are both a widow, not married again, and minor children, the only mode of alienating the homestead estate is that provided by § 14, namely, by sale, in which the widow and the guardian of the children join, he first obtaining a license from the probate court. The guardian of the children, being authorized to convey only by joining with the widow, could transfer no title by a separate deed without her consent. Such a separate deed would be as ineffectual as a wife’s separate deed of her dower or homestead estate during
The manifest object of the statute is to provide a home for the householder’s widow and children during their widowhood and minority, or for such of them as choose to occupy it, to be held and enjoyed by them together; and not to give to either member of the family any title or right of possession which can be transferred to a stranger without the consent of the others. The title in the homestead estate after the death of the husband and father, and so long as either the widow remaining unmarried or any child under age continues to occupy it, most nearly resembles that of husband and wife at common law under a grant to both of them, by which they became seised not of moieties, but of the entirety, per tout et non per my, and neither could dispose of any part without the assent of the other. 2 Bl. Com. 182. Shaw v. Hearsey, 5 Mass. 523. But although the title in the homestead estate is in the widow during widowhood and in all the minor children respectively while under age, the right of possession and enjoyment is in those only of the family who remain in the occupation of the homestead. This is the only construction which will reconcile all the provisions of the statute, and, while avoiding the anomaly and inconvenience of frequent changes in the title of the real estate upon any child’s temporary departure from or return to the homestead, will carry out the purpose of securing one home for the family, free from the intrusion of creditors or strangers.
In this case, the only minor child, having voluntarily left the premises and taken up her abode elsewhere with her guardian, though she still had a joint title with the widow in the homestead estate, yet, while not living thereon, had no right of possession, and could not maintain an action in the nature of trespass for an entry upon and occupation of the premises. French v. Fuller, 23 Pick. 104. We need not therefore con-
Judgment for the plaintiff.