Bates v. Bates, 97 Mass. 392

Bates v. Bates

97 Mass. 392 | Mass. | 1867

Hoar, J.

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 *395on the death of her husband, and his deed of mortgage, in which she did not join, had no effect upon her estate.

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 *396be assigned by metes and bounds, and is to be occupied by the party entitled to it. There is no provision, like that in the case of dower, for assigning it in the rents and profits of the land" or buildings in which it is to be held and enjoyed. It has been held that it does not exist in an estate in which the owner has only an undivided interest as tenant in common. Thurston v. Maddocks, 6 Allen, 427. Silloway v. Brown, 12 Allen, 30. When the assignment of dower, before any homestead was set out, created this peculiar tenancy in common by the act of the tenant in dower, and she afterward conveyed her interest as tenant in common, we think that she had by her own act made it impossible to assign to her any separate part of the estate by metes and bounds as a homestead, and must be held to have intended to relinquish any such claim. She left the occupation of the premises, and the respondent took possession of them, and his estate under his mortgage has become absolute. Whether her abandonment of possession was sufficient in itself to terminate her right, need not therefore be determined.

Exceptions sustained.