126 Ky. 692 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
Charles T. Warren died, leaving surviving him a widow and infant children. At the time of his death, he owned a house and lot occupied as a homestead,
Section 1702 of the Kentucky Statutes of 1903 provides, in part, that “there shall be exempt from sale under execution, attachment or judgment, except to foreclose a mortgage given by the owner of the homestead or for purchase money due therefor, so much land including the dwelling house and appurtenances owned by debtors, who are actual bona fide housekeepers with a family resident in this Commonwealth, as shall not exceed in value one thousand dollars.” Section 1703: “Before a sale under execution, attachment or judgment of land occupied as a homestead, the officer in whose hands the writ or judgment may
The first inquiry that naturally suggests itself is: What right or interest did the widow and children take under section 1707? Manifestly all they are entitled to is the homestead that the husband could claim if living. If the husband had a homestead, upon his death his widow and unmarried infant children are allowed the use of it. They are not entitled to the use of $3,000 or $5,000 worth of property as a homestead, or any property exceeding in value $1,000. When $1,000 has been set apart to them for use and occupancy, they have received the full home
Wherefore the judgment of the lower court is reversed, with directions to enter a judgment in conformity with this opinion.
Extended Opinion by
November 20, 1907.
The question of the widow’s right to elect between homestead and dower is not presented in this record. The fact that she made a mistake as to her right to occupy her husband’s domicile as a homestead, although it was worth more than one thousand dollars, does not militate against her right to elect to take dower in lieu of homestead after her right of homestead is properly defined and limited. When the case returns to the circuit court she may elect between homestead and dower. If she elects to take dower she will be required to furnish a homestead for the