122 Ky. 138 | Ky. Ct. App. | 1906
0iNioN by
— Reversing.
Some years ago J. T. Tarrent died intestate, a resident of Simp-son county, the owner of a small farm w'orth. less than $1,000. He left surviving him a widow and two children. Some time after his death his widow married John Butts, who lived about seven miles away from the home of her former husband on a farm of his own. Since her marriage with Butts she has made his farm her home; the children residing there with her. The evidence shows that she has made the home of her second husband her permanent residence, and that she no longer occupies the home of her first husband, except that she holds it by a tenant. When she had been living several years at the home of her second husband, A. Bloch, who was a creditor of her first husband, brought this suit to subject the land owned by him at bis death to the debt which Bloch held, and, the circuit court having-dismissed his petition, he appeals.
No question is made as to the right of the infants to occupy the land as their home until each becomes 21 years old, and it is not claimed that the abandon
Section 1708, Ky. St. 1903, gives the surviving husband the same rights in a wife’s homestead as
The precise question before us arose in the case of Wright v. Dunning 46 Ill. 271, 92 Am. Dec. 257, where it was said that after the death of the husband the widow being under no disability may abandon the homestead precisely as he could have done, and that whenever it appears that she has acquired another place of permanent abode she thereby loses all right to claim the statutory jmivilege. In the subsequent case of Buck v. Conlogue, 49 Ill. 391, the court again said of the widow who had married a second husband, in speaking of her claim to the old homestead: “Her husbard’s- home is her home, and she cannot insist that she has not acquired a new one; and by its acquisition she lost the right of homestead.” In Paul v. Paul, 136 Mass. 286, the widow built a house on another tract and moved into it, not knowing that she had a right of homestead. It was held that she had lost her homestead. The court said that her ignorance did not affect the fact that she had ceased to occupy the premises, and had long permanently made her home elsewhere. In Hornback v. Brown
It is true a contrary doctrine was announced in West v. McMullen, 112 Mo. 405, 20 S. W. 628, but an examination of the case will show that it was based on the statute there which gave the widow a life estate in the homestead of her deceased husband, and did not confine her to the right to use it so long as she occupied it. The limitation of the widow’s right to the use of the homestead so long as she occupies it is a vital part of our statute. The Legislature in so limiting her right did not intend to give her a life estate, and reasonable effect must be given to the words “so long as she occupies the same.” Were we to hold otherwise, the widow might make her permanent home in a distant State, on land of her own or of her second husband, and still hold the homestead against the husband’s creditors or his heirs. The purpose of the statute is to secure the widow in a home so long as she desires to occupy it. John Butts is entitled to a homestead because he and his wife are living on the land which he owns and it is their home.
Judgment reversed, and cause remanded for further proceedings consistent herewith,