110 Mich. 552 | Mich. | 1896
In 1853, Hugh Haggerty was the owner of about 400 acres of land in the township of Springwells, Wayne county, this State. On September 31st of that year he made a will, by which he gave to his wife, Fannie, a life estate in all the lands of which he should die seised,
This action is in ejectment. The plaintiff claims through the will of her mother; the defendants, through deeds from their father. Plaintiff’s contention on the trial was that, Fannie Haggerty having filed her declination to take under the will of her husband, her life estate terminated, and, her dower not having been assigned she had no possessory rights in the property, but that Henry, having the estate in remainder tinder the will, had a right of entry immediately thereafter. It was further contended by the plaintiff that Henry never asserted any rights in the property thereafter, but, on the contrary, acquiesced in the rights
Counsel for plaintiff contend that the question should have been submitted to the jury to determine the character of the possession of the widow for the 40 years she lived on the homestead after the death of her husband, — ■ whether she was there by the consent of the children, claiming as a life tenant, or claiming to hold adversely to Henry. If the defendants’ 'first contention be correct, —that the declination made by the widow was ineffectual to end her life estate,' — that would end the case; for, being in as life tenant, her possession could not be treated as adverse to the remainderman. But, if this contention be not sustained, we are of the opinion that there is nothing appearing upon the record showing, or tending to show, that the widow was holding adversely to Henry. % How. Stat. § 5744, provides that—
*555 “When a widow is entitled to dower in the lands of which her husband died seised, she may continue to occupy the same with the children or other heirs of the deceased, or may receive one-third part of the rents, issues, and profits thereof, so long as the heirs or others interested do not object, without having the dower assigned.”
There is nothing in the record, that we are able to discover, showing, or tending to show, that any of the heirs, or others interested, during all the time the widow occupied the homestead, ever made objection to such occupancy by her. It was the homestead of her husband and herself and family. At his death she continued in possession with the minor children, the youngest of whom was nine years of age. Others were minors. Even after the declination to take under the will, the widow, made no change in her surroundings, kept the family at the homestead until they married, and from that time forward no one seems to have made complaint. Such holding by her, under the circumstances here shown, cannot be construed as adverse to Henry, who was given the remainder by the will. Her right to occupy the premises continued until her dower was assigned, or some steps were taken to partition the estate. Zoellner v. Zoellner, 53 Mich. 620, 627; Rea v. Rea, 63 Mich. 263; Kitchell v. Mudgett, 37 Mich. 81; Benedict v. Beurmann, 90 Mich. 396. The continuance of the widow upon the homestead after her disclaimer under the will was not an ouster of Henry, but, under the statute above quoted, was a legal entry, and, so long as Henry and the other heirs made no objection, her continuance in possession was not adverse. Hall v. Mathias, 4 Watts & S. 331; Cook v. Nicholas, 2 Watts & S. 27.
We think the court below very properly directed the verdict in favor of defendants. The judgment must be affirmed.