| Mass. | Oct 15, 1867
The petitioner acquired a right of homestead undei
the St. of 1855, c. 238. Her husband owned and occupied the land, with the house upon it, at the time when that statute created the homestead exemption in his favor. As the homestead which he acquired attached to the whole land upon which he lived, it did not cease and was not affected by the building of the new house upon the same lot, and moving his family into it. By § 2 of that statute it was provided that “ such exemption shall continue after the death of such householder, for the benefit of the widow and children of the deceased party, some one of them continuing to occupy such homestead, until the youngest child be twenty-one years of age, and until the death of the widow.” She therefore was entitled to the estate of homestead
The question then arises, has she lost her estate of homestead, by any act or conveyance of her own, since the death of her husband. It is obvious that her deed of the estate in dower which had been assigned to her did not convey the homestead right. The deed in terms conveys only the right of dower, and the covenants of warranty are only concerning “the premises” conveyed.
But the respondent contends that the operation of the assignment of dower and of the deed are such as to render the assignment of a homestead impracticable, and that they constitute in law a waiver and relinquishment of the homestead right; and, upon careful consideration, we are unable to see how this conclusion can be avoided.
If the petitioner had procured the homestead to which she was entitled to be set off to her upon the death of her husband, she might afterward have claimed her dower. There is nothing inconsistent in the right to both dower and homestead in the same estate. Monk v. Capen, 5 Allen, 146. But she first petitioned the probate court for an assignment of dower, and under the provisions of the Gen. Sts. c. 90, § 5, her dower was assigned, with her consent, in one third of the rents, issues and profits of the whole land, as a tenant in common with the other owners of the estate. This tenancy in common for her life of one third of the rents and profits she afterward conveyed by her deed to the respondent, the mortgagee in possession of all the interest in the land which her husband would convey without her concurrence. He is therefore entitled to one third of the rents and profits of the whole land, and she can do nothing to impair the grant which she has made. By her conveyance, an undivided interest in the land has become no longer subject to the estate of homestead, because her dower as assigned is a tenancy in common not subject to partition, and exempted from partition as an element of its value. The estate of homestead is one of a peculiar nature. It is a provision by the humanity of the law for a residence for the owner and his family. It ia to
Exceptions sustained.