9 S.E. 299 | N.C. | 1889
Upon these facts, his Honor adjudged that the plaintiff was not entitled to the relief demanded, and that the defendant was entitled to the homestead which had been set apart to her.
From this judgment the plaintiff appealed.
It is said for the plaintiff, that if the husband dies, leaving no debts and no children, the widow will not be entitled to a homestead, but only to dower, and it is insisted that, this being so, the homestead is conferred simply as a protection against creditors, and that if the homestead has been assigned, and the heir, representing the deceased debtor, pays off the debts, there will no longer be a necessity for the continuance of the homestead estate, and the heir will become entitled to the land, subject only to the widow's right of dower; (172) and for this position Hager v. Nixon,
It appears, from the statement of facts agreed, that there were debts, and that the homestead was allotted to the widow (defendant) according *145
to law, and the allotment or assignment was void. Smith v. McDonald,
We are clearly of the opinion that the homestead, whether laid off to the husband in his lifetime, or, when he leaves no children, to his widow, after his death, cannot be divested in favor of the heir by the release or extinguishment of the debts of the deceased husband, but it shall inure to the benefit of the widow "during her widowhood." Constitution, Art. X, sec. 5; The Code, sec. 514.
No error. Affirmed.
(173)