| Ill. | Feb 3, 1881
delivered the opinion of the Court:
It is erroneous to assume that the homestead estate of the surviving wife of the owner of a homestead is of the value of $1000. The extent of her interest is defined in section 2 of the Homestead act, and it is, that the homestead exemption shall continue after the death of her husband for her benefit, “so long as she continues to occupy such homestead.”
The estate of homestead is not $1000 worth of land, but $1000 is the value of the homestead premises to which the estate of homestead attaches. Such estate in the surviving wife is her right to occupy land of that value. The widow has no fee simple title to the homestead premises, but simply a right of occupancy. In its utmost extent, it can not exceed a life estate. To say that this interest in the homestead premises is of the value of $1000, of the whole value of the premises themselves, is a contradiction in terms. It is to affirm that a part is equal to the whole,—that a life estate is of equal value with the fee.
Section 22 of the Partition act recognizes the existence, after the death of the owner of the homestead, of two separate estates in the homestead premises,—one, the particular estate of the widow—her right of occupancy; the other, the remainder expectant upon the determination of this particular estate, in the heirs, in providing that the homestead may be set off to the widow by the commissioners, and that the homestead premises so set off may be partitioned among the other claimants, subject to the widow’s homestead interest. What a flagrant incongruity there is, then, when the condition is such that the laud can not be partitioned without prejudice, and a sale is had with the assent of the widow, that there should be paid over to her the whole proceeds of the sale of the homestead premises,—the proceeds of the sale of both said estates. Such absorption by her of the whole is not to be permitted. The law has equal regard for each estate.
It is the purpose of the Partition act to provide a method by which property owned in common by several persons may be divided, so that each person may enjoy his own proportion thereof in severalty, or that, if incapable, of division without prejudice, it may be sold and the proceeds divided in such a manner that each may receive such a proportion thereof as he would have received of interest in the land had partition been actually made. Hence, section 34 of the act provides, that when the homestead estate is sold, the value thereof may be ascertained and paid over in gross, or the proper proportion of the funds invested and the income paid over to the party entitled thereto during the continuance of the.estate. This provision for ascertaining the value negatives the idea of there being any known and fixed value of the homestead estate as of §1000, and implies that it is unknown and indeterminate, and that there is, upon inquiry, to be an ascertainment of its value; and the latter provision of said section for investing the proper proportion of the fund, and paying over the income during the continuance of the homestead estate, does not consist with the idea contended for that the value-of the homestead interest is just §1000. There is nothing in the Partition act to warrant such an idea, but the purport is all to the contrary, and the value of the homestead interest is to be ascertained. And such homestead interest, as already observed, is not §1000, nor §1000 worth of land, but only a right of occupancy of land which is of that value, for a term not longer than one’s life.
The sole foundation for the notion that the estate of homestead is, under all circumstances, of the value of §1000, is found in certain provisions of the Homestead act respecting the owner in fee of homestead premises. One section provides, that where the homestead is conveyed by the owner, the proceeds thereof, to the extent of the amount of $1000, shall be exempt from execution or other process for one year; and other sections, that where the owner is involuntarily deprived of his homestead by sale on execution or in the enforcement of a lien, he shall be paid $1000 in the one case, and the amount of the exemption in the other. This is not any legislative determination that the homestead interest is of the value of $1000, but the allowance of $1000 in such cases is for the purpose of enabling the homestead owner with such sum to purchase another homestead, being in the carrying out of the policy of securing a home for the family. All such provisions in the Homestead act are in respect of the owner of the homestead premises, where the sole interest in homestead premises is in him, and are as against the creditor. They provide in the specified cases merely, and come short of fixing $1000 as the value of the homestead interest in all cases. They enact what amount of land for a home, or of money to buy a home,—a wise and just policy,—allows a debtor to retain as against creditors who have no interest in the land.
But ivhen, under the Partition act, we come to deal with the estate of homestead which is in the surviving wife of the owner of the homestead .premises, her estate is of a different character, and different considerations apply. The interest which had existed entire in the husband, has become severed. The widow has only a particular estate in the homestead premises, the right to occupy them during her life, and subject to this right of occupancy the homestead premises are vested in the heirs, if there be no devise. The Partition act respects these separate estates of the widow and heirs in the homestead premises, and the amount which the homestead "law fixes as the allowance to be made to the owner in fee of the homestead as against the creditor, who has no interest in the homestead premises, can have no proper application as being the measure of value of the widow’s particular estate, when the,question is one between her and the heirs in the adjustment, under the Partition act, of the relative value of their respective estates in homestead premises. And even if there were any inconsistency between the two acts, the Partition act would govern, as being the latest expression of the will of the legislature, it having been passed in 1874, while the Homestead act was passed in 1873.
The statute makes no distinction as to the right of occupancy by, a widow or by a child. If one must be valued at $1000, so must the other, no matter how small a portion of the particular estate yet remains. And thus, under the rule contended for, in the case of a minor lacking but six months of his majority, the value of his right to occupy foyv six months homestead premises of the value of $1000, would be held to be $1000, and the same as that of a minor one year old to occupy them twenty years. The absurdity of this every one would exclaim against.
Under the Partition act the homestead may be set off to the widow, and the premises so set off to her be partitioned among the heirs, subject to her right to occupy the same during her life, or her estate of homestead may be sold, with her assent in writing. Without such assent of hers, it can not be sold, and if she will, she ma.y retain the occupancy of the homestead j but if she does assent to the sale of her estate of homestead, and one is had, then the statute, in pursuance of its purpose, that where the land is sold the different persons interested shall receive, as near as may be, the same proportion of interest in the proceeds that they would have received in the land itself had partition been actually made, provides: “When any such interest is sold, the value thereof may be ascertained and paid over in gross, or the proper proportion of the funds invested, and the income paid over to the party entitled thereto, during the continuance of the estate.” This clear provision of the statute must be followed. One thousand dollars is not to be paid over to the widow, nor is the .value of her homestead to be assumed as $1000, but it is to be ascertained according to the usual mode of determining the value of life estates in similar cases.
Appellee makes claim that she should have been allowed a sum in gross as the value o; her dower in the entire fund, instead of a sum in gross as the value of her dower in only the residue of the fund after deducting the value of the homestead right. We perceive no error in the decree in this respect. The widow could not enjoy two life estates in the same premises, and was rightly allowed as only for one.
The judgment of the Appellate Court is reversed, and the cause remanded for.further proceedings in conformity with this opinion.
Judgment reversed.