| Mass. | Sep 15, 1864
Looking at the facts stated in the present case, we are of opinion that the petitioner was entitled to the homestead claimed by her, and this, independently of the question whether under our present statutes a right of homestead can be lost by an abandonment of the same. The mere fact of cessation to occupy for a time is not an abandonment, Nothing short of a voluntary abandonment of an unequivocal character, and so understood by all the parties in interest, would divest the estate of a homestead interest charged thereon, if such defence can avail at all. Here was no sale of the premises by the husband, and the husband and wife had, for aught that appears, only temporarily gone to another house of the husband in the same village, in consequence of his infirm health, leaving this place in charge of his son, and this absence from the old homestead was only for the period of a few months before the death of the husband occurred. There is nothing to show that, in case of improved health, or whenever his convenience required it, he was not to return, or that in case of his death his wife did not purpose so to do. In the case of Drury v. Bachelder, 11 Gray, 214, there had been a temporary leaving of the house as the present residence of the husband and wife ; and in Dulanty v. Pynchon, 6 Allen, 510, there was for a year a change of residence of the parties, and a lease of the premises for that period to another person, but with the intent to return, and this was held no abandonment. These and other reported cases indicate strongly the views of this court to be that if any abandonment can have the effect to defeat an existing homestead, upon which we express no opinion, it must be full and complete, and under circumstances that leave no doubt that such was the intention of all parties interested in the homestead right, and that they had a settled purpose not to return to the same as a place of residence.
As to the objection that a hotel is not a species of property which is embraced in the statute providing for homestead exemptions, if such objection could be taken as to a structure exclusively devoted to public entertainment, and of the character of those existing in our cities, it does not apply to hotels in
The only doubt as to the disposition of the case arises upon a question not raised by the parties, whether this case is properly before us. It comes here to be considered upon an agreed statement of facts filed in the probate office, on behalf of the petitioner on one side, and the devisee of the estate on the other. If this right of homestead on the part of the petitioner was disputed by the devisee before the probate court, that court was thereby ousted of its jurisdiction, and the petitioner must have recourse to other tribunals to enforce her claim, as we have recently held in the case of Woodward v. Lincoln, decided in Bristol, in October.
The case having been presented to the court solely upon the question of the petitioner’s right to a homestead upon the facts stated and agreed by the parties, we have declared our dews upon the question thus presented ; but it is proper to add that the probate court had no further jurisdiction in the matter, if the granting of the petition was opposed by the devisee. And for this cause no further proceedings can be had upon this petition, but the petitioner must enforce her claim to a homestead by other proceedings.