92 Ky. 5 | Ky. Ct. App. | 1891
delivered the opinion op the court.
This appeal presents a single, but hitherto undecided question by this court.
When the appellee, H. H. Sale, in 1864, first came into, the occupancy of the property in contest, and in which
He has occupied it as a housekeeper ever since. In 1883, when this suit was brought upon a return of nulla bona to subject whatever property he had to the payment of the appellant’s debt, his family had narrowed to one daughter, an invalid brother, and his mother-in-law; and since October, 1887, although a housekeeper in the property, he has, by reason of death and marriage, had no family whatever, within the legal meaning of that term, living with him. (Brooks, &c., v. Collins, 11 Bush, 622.) It is, therefore, claimed that it is not now exempt to him as a homestead, but is liable to the appellant’s debt.
Our .statute exempts to the debtor, as a homestead, land worth not over one thousand dollars, if he be a bona fide housekeeper with a family of this Commonwealth. The nature of this right is not fixed by the statute by name. He may sell the property, but is divested of the right to it, if he permanently abandons it as his home. It may, perhaps, be said to be a qualified estate. It continues after his death for his widow during her occupancy of it, though there be no children. (Gay v. Hanks, 81 Ky., 552.)
The husband has the like right in the homestead of the deceased wife. This court has decided that where the right is thus derivative, the having of a family is not necessary to its continuance. It is to the creation of the right at the outset in the husband or wife, but not to the continuance of it in the survivor. (Ellis v. Davis, 90 Ky., 183.)
In this case, however, there is no derivative right of
The statute makes no express mention in this respect. We must, therefore, look to its general scope and spirit for guidance, the right being the creature of it.
It is urged with force that the homestead exemption is for the benefit of the family, and, therefore, where this family relation does not exist, there is no homestead exemption. In other words, the reason for the rule ceasing, the rule ceases. This 'is true as to the coming into existence of the homestead right; and it is no doubt also true that the primary object of the statute was the protection of families from want, and the giving to them a shelter; yet the fact that the statute gives the homestead of the deceased wife to the husband during his occupancy of it, although he has no family, shows that it was not intended to provide for the wife and children alone. He, in such a case, does not become homeless.
Can it well be supposed that the Legislature intended that in the event of the death of the wife owning the homestead, the benefit of it should continue to the husband during his occupancy, although he has no family, and yet that if he be the owner of it, and his wife or children die, or the latter marry and leave him, his right to the exemption ceases ? If so, it is a singular state of
Why should not the original owner have a right equal to the survivor, and why should not the law favor the latter equally at least with the former ? Is the party to be worsted because he owns the property? Can any reason be given why the same right should not exist as to his own property as is given to him in his wife’s property after her death ? Ought not his claim to a homestead in his own property, as against his own creditors, to be as much regarded as his claim to one in her property after her death ?
The construction here contended for by the creditor should not be given to a statute which was enacted from, a spirit of liberality toward the debtor. The Massachusetts statute of 1855 limited the homestead exemption to a “ householder having a family.” It continued it to the widow and children after his death, but contained no provision for its continuance to the husband after the death of his wife and the departure of his children; but the Supreme Court of that State held that his right was not thereby lost so long as he continued to occupy the property as his home, saying: “ Any other construction would render a husband, who had been deprived of his family by accident or disease, or by their desertion, without any fault of his, liable to be instantly turned out of his homestead by his creditors.” (Silloway v. Brown, 12 Allen, 30.)
Here the debtor was invested with the right; it existed when this suit was brought; he has done nothing to release or forfeit it, and in our opinion is still entitled to it, being yet a housekeeper in the property, although by misfortune he no longer has a family.
Judgment affirmed.