161 Mass. 276 | Mass. | 1894
It is conceded that David Pratt, the husband of the petitioner, had, at the time of his death in 1889, an estate of homestead, acquired under the St. of 1855, c. 238, which continued under the St. of 1857, c. 298, § 18, the Gen. Sts. c. 104, § 3, and the Pub. Sts. c. 123, § 3. The extent of this estate is in controversy. From a time prior to 1840 down to his death he was the owner of the premises described in the petition. The house was a single one, with one front door, and was built for one family. Since 1852, his son, the respondent, with his family, was allowed to live in a portion of the house, which may be described in general terms as the northerly half of the house, while David Pratt and the petitioner lived in the southerly half; the cellar, hallways, stairs, some rooms in the second story, and the barn being used in common. On these facts, we are of opinion that David Pratt had an estate of homestead in the entire estate.
The right of homestead which was thus acquired was a freehold estate for the life of the husband, and for such further time as his widow should continue to occupy the homestead. The husband could not affect it by his will. Brettun v. Fox, 100 Mass. 234. In this case the husband', who died possessed of a homestead estate consisting of a dwelling-house and land, by his will gave to his wife, the petitioner, an estate for life in one undivided third of the same, and the remainder in fee to his son, from whom the respondent derived his title; and the petitioner did not within six months waive the provisions of the will. It was held that the petitioner was entitled to have an estate of homestead set off to her.
It is provided by the Pub. Sts. c. 123, § 8, that “ the estate of homestead existing at the death of a householder shall continue for the benefit of his widow and minor children, and shall be held and enjoyed by them, if some one of them occupies the premises.” The fact that the petitioner left the premises the day after the funeral of her husband, and her continued absence, under the circumstances set forth in the report, do not deprive her of her right to maintain this petition. Brettun v. Fox, Lazell v. Lazell, and Mercier v. Chace, ubi supra. In Paul v. Paul, 136 Mass. 286, relied upon by the respondent, the widow left the homestead estate with the intention of not returning, having built another house. In the case at bar it is found that she intended to return.
According to the terms of the report, there must be
Judgment for the petitioner.
