34 N.H. 392 | N.H. | 1857
Although the act of July 4, 1851, under the provisions of which the petitioner claims to have a homestead assigned to her out of the estate of her late husband, is entitled “ an act to exempt the homestead of families from attachment and levy or sale on execution,” some of its provisions are of a character to give it a much wider application than its title imports.
By the first section it is declared not only that the family homestead of the head of each family, to the value of five hundred dollars, shall be so exempted from attachment, and levy or sale, but also that it “ shall not be assets in the hands of the administrator, nor subject to distribution or devise, so long as it shall be. occupied by the widow or any of the minor children.” And it is further declared in the same section, that no release or waiver of the exemption shall be valid unless made by deed, executed by the husband and wife, with all the formalities required by law for the conveyance of real estate; or if the wife be dead, and there be minor children, by such deed executed by the father, with the consent of the judge of probate indorsed thereon. It is obvious from these provisions that the homestead contemplated by the act is not only to be exempted from attachment and levy or sale on execution against the owner in his lifetime, and for the benefit not merely of himself, but of his wife, if living, and of his minor children, she being dead, but also that upon his decease it is not to be administered upon as assets for the payment of his debts, nor to be subject to the laws of distribution among his heirs, norato pass by a devise in his last will and testament, so as to defeat the right of his widow to enjoy it as a homestead during her life, if she shall choose thus to occupy it, nor of his infant children so occupying during their minority. It is not, indeed, declared in explicit terms that the widow or infant children shall have the right thus to occupy, but it is manifestly implied. It cannot be doubted that it was so intended
There can be no doubt that the property in which the homestead right is claimed by the widow must have been occupied by the deceased husband as his domicil, or home. It is designated, in the first section of the act, as “ the family homestead.” In the second section the exemption from attachment and levy or sale is declared to extend to any interest which the debtor may own in “ such homestead,” and to any building occupied by him as a “ homestead,” standing on land not owned by him; and in all cases the exemption and estate, or right, are limited to the value of five hundred dollars. By the third and fourth sections the mode is prescribed for carving out of the whole estate or property so occupied by him, as his domicil or home, the precise homestead of the limited value which he may hold under the exemption, and for setting it off to him in the particular case specified, and in that case only, namely, in the ease of proceedings by a judgment creditor, to obtain satisfaction of his execution by a levy upon the land, or a sale of his interest in the property thus occupied.
The act, then, creates and sets up in every owner of the estate, or property occupied by him as the head of a family, for
Upon this view, the widow having such inchoate right is entitled to have it assigned to her in severalty. No mode is prescribed in the act for making this assignment; but this was unnecessary for a case of this character, as the provisions of chap. 167 of the Revised Statutes would seem to be sufficient for this ; at least, in cases where the homestead is claimed out of the real estate of the deceased husband. By the first section of that chapter the judge of probate is empowered to cause the dower and share of the widow, and the shares of any or all of the heirs or devisees, in the real estate of any person deceased, or any part of it, to be divided and assigned to them in severalty, according to their respective interests in one or more parcels, as may be convenient. This provision, so far as it gives authority in terms to assign the share of the widow in the real estate, was first introduced upon the revision of the statutes in 1842. It was undoubtedly intended originally to apply to cases arising under secs. 5 and 6 of the act of December 24,1840, giving to the widows of persons deceased without lineal descendants, in addition to dower, one half, in cases of intestacy, and one third, in cases of testacy, and a waiver by the widow of the provisions of the- will, of all the estate remaining after the payment of debts and the expenses of administration. Until the passage of that act the widow, as such, had no rights beyond her dower in the real estate of her deceased husband. Under its provisions
In this case the facts appear that the estate out of which the petitioner prays for the assignment of her homestead, was the real estate of her husband ; was occupied by him at the time of his death as his family dwelling and home, and that the petitioner, his widow, continued to occupy it, with the infant children, from his decease until the time of presenting her petition to the judge of probate. The homestead right, under the act, attached for her benefit; and this right, so far as relates to this ground of claim, constitutes her share in the real estate of her deceased husband; and the judge of probate has authority, under the provisions of the chapter of the Revised Statutes referred to, to assign and set off to her that share, in the mode therein prescribed.
The opinion of the court is that the judge of probate erred in denying the petition ; that the decree, refusing to proceed and make the assignment, must be reversed ; a decree entered that the homestead be assigned and set off, according to the prayer of the petition, and the case Temitted to the judge of probate for further proceedings.