49 Mich. 176 | Mich. | 1882
The plaintiff is widow of William W. Patterson,. wlio died intestate August 14, 1S79, leaving surviv
Upon this state of facts the question was made in the court below whether the plaintiff and her children were entitled to a homestead right in the dwelling-house and forty acres, to the exclusion of the other heirs. It was conceded that the plaintiff had a dower right in the lands, and that twenty acres of the forty had been set off to her in satisfaction of that right. It is not claimed, however, that the homestead claim would be affected by that fact. Showers v. Robinson 43 Mich. 502; Monk v. Capen 5 Allen 146; Mercier v. Chace 11 Allen 194; Doane v. Heirs of Doane 33 Vt. 679 ; Chaplin v. Sawyer 35 Vt. 286; Walsh v. Reis 50 Ill. 477; Bursen v. Goodspeed 60 Ill. 281; Perkins v. Quigley 62 Mo. 498 ; Buxton v. Dearborn 46. N. H. 43.
The circuit judge held that the plaintiff had, as against the heirs of her husband, no homestead right. This ruling is in accordance with the decision in this Court in Robinson v. Baker 47 Mich. 619. In that case the constitutional provisions which give the homestead right were recited, and it was shown that they were exemption provisions strictly, and gave the right only as against creditors'. In that respect they differ from provisions existing in some other States. In Massachusetts the widow’s homestead right is not only
But this view of the homestead right does not dispose of the case. It does not follow that because the heirs might claim partition, they were therefore at liberty to disturb an existing possession; and in respect to actual occupancy the evidence was such as to make a case for the jury.
It appears from the statement of facts above given that while plaintiff claimed to be in possession of the locus in quo at the time of the alleged trespass, John K. Patterson claimed on the other hand to have been in exclusive possession with the plaintiff’s consent. If this claim on his part was sustained .by the evidence, it should have been an end ■of the case. But the burden to prove this was upon the ■defendant, and the plaintiff denied. The fact of possession was therefore in dispute upon the facts, and should have been submitted to the jury.
If, as the plaintiff claims, and as the evidence tends to .show, she was left in possession by her husband’s death, we do not think it was the right of an adult, heir residing elsewhere to come upon the premises and disturb her possession while .the' estate was in process of settlement. His remedy, if the
The judgment must be reversed with costs, and a new ■trial ordered.