| N.H. | Dec 15, 1872
In Norris v. Moulton, 34 N. H. 397, it is held that the right of homestead, like that of dower before it is assigned and set off in severalty, is inchoate, and while it thus remains unassigned, no estate can be said technically to vest in the wife, but, as in the case of dower, she has an inchoate homestead in the whole estate to the extent of such proportion as $500 bears to the value of the whole; that when it is assigned and set off' to her, that vests in her a conditional estate for life ; — and it was also held that the judge of probate might assign to the widow such homestead, by virtue of the general provisions in the probate law.
So, in Atkinson v. Atkinson, 37 N. H. 436, the right of the wife is termed the inchoate right of homestead as it existed in the husband and wife during his life, and in his widow and minor children, if any, after his decease; and in Fletcher v. State Capital Bank, 37 N. H. 391, 395, it is held that the wife’s right of homestead may be set off to the wife after the husband’s death, by the judge of probate, as in Norris v. Moulton, supra, and that the homestead right stands substantially upon the same footing as the right of dower.
In Horn v. Tufts, 39 N. H. 484, it was held that- the probate court had jurisdiction to assign homestead to a widow only in the estate of which her husband died seized, and also where there was no dispute about the title ; while it seems to be held (p. 485) that the supreme court may also, upon the death of the husband, upon a bill in equity, assign homestead to the widow, in cases where the title is in dispute, and would also have a concurrent jurisdiction with the court of probate in other cases. See, also, Atkinson v. Atkinson, 37 N. H. 434, and Gunnison v. Twitchel, 38 N. H. 62; Strachn v. Foss, 42 N. H. 43.
The right of homestead, before the same is set out and assigned, is not such an estate in land, such a subsisting legal title or interest, as will bar a writ of entry, but only an inchoate right, personal to the parties in whom it exists; and its existence in a particular individual gives him or her no controlling title to the land as against the general owner, any more than the possible existence of a right of dower in a wife before the death of her husband gives her such title; and before being thus set out is not a right that can be assigned. Foss v. Strachn, 42 N. H. 40; Gunnison v. Twitchel, 38 N. H. 62; Bennett v. Cutler, 44 N. H. 71; Judge of Probate v. Simonds, 46 N. H. 368; Barney v. Leeds, 51 N. H. 253.
So the words used in our statute, giving to wives or widows this right of homestead, are the same as those used in giving rights of dower—Gen. Stats., ch. 124, sec. 1—the wife, widow, &c., “shall be entitled” to a homestead, &c.; so ch. 183, sec. 2,—the widow, &c., “ shall be entitled” to her dower, &c.
Our opinion is, that the wife has not lost her right of homestead in this case, although she has been much of the time absent. Atkinson v. Atkinson, 37 N. H. 435, and S. C. 40 N. H. 249; Austin v. Stanley, 46 N. H. 52. But her right until the homestead is assigned is imperfect, inchoate, and much like a right of dower, and cannot be set up as a bar to a writ of entry, or an action of trespass quare clausum.
Under the General Statutes, chapter 124, section 1, as amended June, 1868, ch. 1, sec. 33, the wife, widow, and children of every person who is the owner of a homestead, &c., occupied by himself or herself, and his or her family, “ shall be entitled” to a homestead, &c., as against the creditors, grantees, and heirs of such person ; and section 4, chapter 124, General Statutes, as amended June, 1868, ch. 1, sec. 36, provides that the judge of probate, on petition after the death of such person, or any conveyance by him or her made, may cause such homestead to be set off, in the same manner as dower may be assigned by him.
Under this provision of the law the wife would seem to have the right to have a homestead assigned during the life of the husband in lands which he has conveyed, and in which conveyance the wife has not joined; but we suppose that would only be in case the debtor had no other homestead for his wife and family. Neither the husband nor wife in this case loses the right of dower by not making their application to have it assigned when the estate was set off on execution—Barney v. Leeds, 51 N. H. 253; and although the husband is still living, yet if the set-off on execution in this case, which is a kind of statute conveyance, is to be regarded as a conveyance by the husband within the meaning of- this section 36 of the law of June, 1868, chapter 1, then the judge of probate might assign to the wife, in this case, a homestead. But however that may be — and upon that subject we express no opinion — no such thing has been done or attempted; no application has been made to the judge of probate or the supreme court to have her homestead assigned in these premises.
And we think that under the law of 1851, and also under that of 1868, the wife cannot be considered, — at least while her husband lives-, — as having any vested estate in the premises until her homestead has been assigned to her; till then she has merely an imperfect an inchoate right, which is not assignable, and is not a vested estate;
But it is said that the whole real estate in this case is not worth $500, and that is found to be so by the court. But the findings in this case might not be conclusive in a proceeding by the wife to have her homestead assigned to her out of these premises; and we think the only way to settle that fact is upon such application to have homestead assigned in some of the ways provided by law, for that is the only appraisal recognized by the statute. And when thus assigned to her, her inchoate and imperfect right, which till then constitutes no vested estate in or legal title to the premises, and is not assignable, becomes a vested and perfect conditional estate for life in the wife or widow, which could then, and not till then, be set up as a defence to a writ of entry, or an action of trespass quare clausum fregit.
The damages were assessed by the judge who tried the cause at fifteen dollars, and for that sum there must be
Judgment for the plaintiff.