46 N.H. 261 | N.H. | 1865
The question is, whether the widow by a second marriage loses her right of homestead in the estate of her first husband.
The argument of the defendant’s counsel is that by such second marriage she ceases to be the widow of her first husband, orto be any longer the head of his family, or in a situation to discharge the duties to his minor children which were contemplated by the statute in providing for this homestead.
By this statute the family homestead, while occupied as such by the husband during his life, or "his widow or minor children or any or either of them” after his death, is protected from his creditors; and the point is, whether the term "widow” was used to denote the person who was the wife of the deceased, or whether it was used as a term of limitation, operating to give her an interest only so long as she remained a widow.
Some light may be gained from the construction given to this term in the laws upon the somewhat analagous subject of dower and distributive shares in a deceased person’s estate.
By the Revised Statutes, ch. 165, C. S. ch. 175, various provisions are made for the wife of a person deceased, and in every one of the fourteen sections but the eleventh, which merely qualifies three of the preceding sections, she is designated as the widow.
One of these sections authorizes an allowance for present support, to the widow; another gives her dower in the real estate. Section eight gives her, in addition to dower, one third part of all the estate remaining after payment of the debts and expenses of administration, where the husband leaves no lineal descendants, or makes no provision for her by will, or she waives such provision; and by section ninth, if the deceased is intestate and leave no such descendants, she shall have one half of the estate so remaining, in addition to her dower, or, as provided in the next section, to an amount equal to that which her husband received from her, or in her right during coverture, if she so elect.
By section twelve, if the deceased shall leave lineal descendants, but no will, she shall be entitled to one third part of the personal estate in addition to her dower; and by sections thirteen and fourteen, if the deceased die testate, leaving lineal descendants, but making no provision for the widow in his will, or she waives such provision, she shall be entitled to a portion of the personal estate equal with the children, or if
Neither is it anywhere provided in this, or any other statute, that a subsequent marriage shall affect her right to the benefit of these provisions. In this respect it differs from the cases of an executrix, or administratrix, or a female guardian, for then, by express provisions of our statutes, her marriage extinguishes the trust; and if it had been the design of .the legislature in its provisions for the wufe to limit their benefits to the time during which she remained a widow, it doubtless would have been declared in express terms, as in the cases of an executrix or guardian.
- The policy of the law is against restraints upon marriages, and therefore a contract not to marry at all, or not to marry anybody but a particular person, without enforcing a corresponding reciprocal obligation', is treated as mischievous to the general interests of society, which are promoted by the support and encouragement of suitable marriages, and therefore such contracts are void. 1 Story Eq. Ju. sec. 274.
With such views of public policy, it would be utterly unreasonable to infer from the use of the word widow in the various provisions before quoted, a condition operating so decidedly in restraint of future marriages.
The definition of dower at common law as given by Littleton, ch. 5, sec. 36, is, where a man is seized of certain lands in fee simple, fee tail general, or as heir in special tail, and taketh a wife and dieth, the wife, after the decease of her husband, shall be endowed of the third part of such lands and tenements as were her husband’s, at any time during the coverture, to have and to hold to the same wife in severalty by metes and bounds for term of her life, whether she have issue by her husband or no, and of what age soever she may be, so as she be past the age of nine years. And Coke says in his notes to the same section, that to the consummation of dower three things are necessary, viz., marriage, seizin, and the death of the husband.
It will be perceived here that the term wife is constantly used, instead of the term widow as in our statute, and yet they are both used merely as descriptive of the person, and mean the same thing; and it -will hardly be contended that the estate of the tenant in dower terminates on her second marriage any more than would be the case of a tenant by the curtesy.
Nor can it be urged that the distributive share provided by the statute referred to, will be affected by a subsequent marriage. Under a similar law in Massachusetts it has been expressly decided that the statute is as explicit in giving one third of the personal property to the widow, as in giving the two thirds to the children ; and that the right of the wife is a vested interest, and not defeated or affected by her subsequent marriage or death.
By the operation of this statute the wife has an estate for life in the homestead upon condition that she continues to occupy it. Norris v. Moulton, 34 N. H. 392, 397—8. But this estate is farther qualified by the right of the minor children, if there be any, to occupy and enjoy it with her during their minority. This interest of the wife is given to her in terms not differing materially, so far as the question before us is concerned, from the terms used in the statute before quoted, providing for dower and a distributive share for the wife; and there is nothing in the nature of this homestead provision that calls for a different construction of those terms.
There may, indeed, be cases where a subsequent marriage might be unfortunate or prejudicial to minor children, who might need the undivided care of the mother. On the other hand there may be no minor children at all, or they may afterwards have become of age, and in that case the widow alone would be entitled to the homestead.
It is sufficient, however, to -say that the legislature has not in this instance seen fit to impose any restraint upon the subsequent marriage of the wife, in express terms, and none can be implied from the use of the term widow, any more than in the case of the other statute before referred to.
It is urged that the minor children may, by a second marriage of the mother, be deprived of their home; but we think that a court of equity would afford ample remedies for such children, should there be an attempt to apply the use and profits of the homestead to other than legitimate purposes, namely, the support of the mother and minor children. See Fletcher v. State Capital Bank, 37 N. H. 395.
So far as we have any decisions on this subject, we find no countenance for the position of the defendants; on the contrary, we think their tendency is the other way.
In Norris v. Moulton, before cited, it is held that the wife is entitled to a conditional estate for life, depending upon her occupying such homestead, but nothing is said of the effect of a second marriage.
In Hoitt v. Webb & Wife, 36 N. H. 158, where the widow had married again, nothing was said of the effect of such subsequent marriage, but the decision was against the wife upon the ground that the land was never occupied as a homestead. See, also, Foster v. Foster, 36 N. H. 437.
Upon these grounds we are of the opinion that the wife does not lose her homestead by a subsequent marriage, and we are also of the opinion that a bill in equity is a proper form of remedy in such cases. Atkinson v. Atkinson, 37 N. H. 434; Strachn v. Foss, 42 N. H. 44.
We think, also, that the minor children are proper if not necessary
Demurrer overruled.