purchase, 93 96 Tenancy in common. If decedent was a tenant in common, his surviving children and his widow obtain rights of exemption in the property in jurisdictions where a homestead may be acquired in property so held.97 And on the other hand the surviving wife is not entitled to a homestead by survivorship in property which was held by herself and her husband as tenants in common in a jurisdition where the homestead laws do not permit the acquisition of a homestead in property so held.9 98 Community interest. A surviving spouse succeeds to homestead rights in community homestead.99 A homestead by right of survivorship may be allowed to a second wife and her child in the husband's moiety of community property which was a homestead under the first marriage, subject to the right of partition by the heirs of the first wife.1 Partnership interest. No homestead by right of survivorship, it has been held, can be claimed in partnership property,2 at least while firm debts remain unpaid. Leasehold estate. It has been held that no homestead can be claimed by a survivor in leasehold property.* But there is authority to the contrary. If the lease has expired, the widow cannot extend 296, 142 SW 172; Persifull v. Hind, 88 Ky. 296, 11 SW 15, 10 KyL 880; Harley v. Harley, 140 Wis. 282, 122 NW 761. See also supra §§ 147-155. 93. Ala. Munchus v. Harris, 69 Ala. 506. Ark. Spaulding v. Haley, 101 Ark. 296. 142 SW 172. Ill-Stafford v. Woods, 144 Ill. 203, 33 NE 539. S. C.-Munro v. Jeter, 24 S. C. 29. Tenn.-Fauver v. Fleenor, 13 Lea 622. Tex.-Harrison V. Oberthier, 40 Tex. 385. Wis.--Harley v. Harley, 140 Wis. 282, 122 NW 761. See also supra §§ 149-154. [a] Thus, where an executory vendee dies in possession, and the widow is entitled to enforce the contract of purchase, she is, for her life and widowhood, the equitable owner of the homestead if there is one, with a right to be clothed with the legal title to that extent. Harley v. Harley, 140 Wis. 282, 122 NW 761. 94. Elstroth v. Young, 83 Mo. A. 253; Norris v. Morrison, 45 N. H. 490. See supra § 148. 95. Spaulding v. Haley, 101 Ark. 296, 142 SW 172. See also supra § 149. 96. Rhodes V. Porter, 107 Ark. 222, 154 SW 510; Ferris v. Jensen, 16 N. D. 462, 114 NW 372. it by a claim of homestead. 8 [§ 516] 3. Allowance in Lieu of Homesteada. In General. From the very definition, nature, and purpose of a homestead, it is the policy of the homestead laws that an actual homestead in the original homesteader's land should be allotted for the use of the surviving spouse and minor children in every instance where practicable. Ordinarily, therefore, neither a money allowance1o nor other land of decedent11 will be given to the survivors in lieu of the homestead property of decedent, except where in the circumstances such homestead cannot be given to them, 12 or where there is some special statutory provision authorizing such procedure;1 and in any event great care should be exercised to protect their interests." Where an allowance is permitted in lieu of homestead, it should be made out of the debtor's entire estate rather than out of any specific property, 15 although it has been held that it may be made out of proceeds from the sale of real estate, other than the homestead, in the hands of a trustee in bankruptcy.16 [§ 5162] b. From Proceeds of Sale of Property. Applying the rule above stated," the homestead cannot ordinarily be taken away from one entitled to it and the proceeds of a sale thereof substituted for it,18 unless under some special statutory authorization the survivor may19 and does consent20 to such a proceeding. However, while the rule may be otherwise under some homestead provisions, 21 the better view is that, where in the nature Ill-Capek v. Kropik, 129 Ill. 509, 11. Blair v. Thorp, 33 Tex. 38. 21 NE 836. 12. Hollis v. Watkins, 189 Ala 292, 66 S 29; Hamilton V. Wilcox. 167 Mich. 551, 133 NW 615; Hoffman v. Hoffman, 79 Tex. 189, 14 SW 915, 15 SW 471. See Grote v. Grote. 275 Ill. 206, 113 NE 967 (recognizing rule). Mich. Sherrid V. Southwick, 43 Mich. 515, 5 NW 1027; Lozo v. Sutherland, 38 Mich. 168. Tex.-Griffie v. Maxey, 58 Tex. 210. Vt.-Danforth V. Beattie, 43 Vt. 138; McClary v. Bixby, 36 Vt. 254, 84 AmD 684. See also supra §§ 1631⁄2-170. 98. Matter of Davidson, 159 Cal. 98. 115 P 49; Carriger's Est., 107 Cal. 618, 40 P 1032. See also supra §§ 1634-170. 99. See supra § 508. 1. West v. West, 9 Tex. Civ. A. 475, 29 SW 242. 2. 665. 3. 13. Steiner v. McDaniel, 110 Ala. 409, 20 S 54; Jackson v. Rowell, 87 Ala. 685, 6 S 95, 4 LRA 637; In re Isaacs, 30 Cal. 105; and cases infra §§ 5162, 516%. 14. Thompson v. Thompson, 105 SW 1185, 32 KyL 319. 15. Mabry v. Harrison, 44 Tex. 286. 16. 972. 52 17. Kingsley v. Kingsley, 39 Cal. Miss. 713. In re Buckingham, 102 Fed. See supra § 516. Richardson v. Trubey, 250 Ill. 577, 95 NE 971; Bliss v. Fuhrman, 6 Oh. Cir. Ct. 203, 3 Oh. Cir. Dec. 416. [a] The reason for the rule is that it would defeat the purpose of the homestead laws by giving to the person entitled to the homestead money instead of the right to the use and occupancy of the exempt property. Richardson v. Trubey, 250 Ill. 577, 95 NE 971. 19. See statutory provisions. [a] In the absence of special statutory authorization the widow has no right to elect to have the homestead sold and the proceeds alV. Watkins, 189 lowed her in lieu thereof. Bliss v. Fuhrman, 6 Oh. Cir. Ct. 203, 3 Oh. Cir. 8. See supra § 1 et seq. Ala. 292. 66 S 29. Ill. Richardson v. Trubey, 250 III. [a] Contract of sale rescinded by mutual consent.-Where land was sold and possession delivered to a husband, who failed to pay as agreed, and the sale was thereupon rescinded by mutual consent without any conveyance to the husband 97 Ill. 243. having been made, the wife acquired no right of homestead in such land. Rhodes v. Porter, 107 Ark. 222, 154 SW 510. 97. Ala.-Hollis v. Watkins, 189 Ala. 292. 66 S 29; Upshaw v. Upshaw, 180 Ala. 204, 60 S 804. Ark. Stull V. Graham, 60 Ark. 461, 31 SW 46; Ward v. Mayfield, 41 Ark. 94. Ky.-Duff v. Duff, 145 Ky. 376, 140 N. D.-Calmer v. Calmer, 15 N. D. Tex.-Blair v. Thorp, 33 Tex. 38. 10. Richardson v. Trubey, 250 Ill. 577. 95 NE 971; Bliss v. Fuhrman, 6 Oh. Cir. Ct. 203, 3 Oh. Cir. Dec. 416. 20. Richardson v. Trubey, 250 III 577, 95 NE 971. [a] "If the owner chooses to do so he may by written assent filed in the court where the proceedings for partition are pending, agree to the sale of his estate with the rest of the property, and in such case the estate is sold for its present value. which the owner receives." Richardson v. Trubey, 250 I11. 577, 582. 95 NE 971; Merritt v. Merritt, 97 Ill. 243. 21. Noah's Est., 73 Cal. 590, 15 of things land cannot be set apart as a homestead to the survivors, then the law will make provision for them in lieu thereof; 22 and in some jurisdictions it is so provided by statute.23 Under some statutes where the husband owned no homestead property, an allowance in money may be made the widow in lieu thereof;24 but under other statutes no such allowance may be made where these circumstances exist.25 In some jurisdictions, apparently without reference to other statutes, it was held that, where land allotted to the widow is of less value than the exemption fixed by statute, she will be entitled to have proceeds of the sale of other property of the estate to an amount sufficient to make up the shortage set apart to be invested for her benefit;26 and that, where in the course of administration land of deceased is sold to pay his debts without the widow having made application to set off a homestead, the creditors will not be entitled to the entire fund but the court may grant an allowance to the widow out of the proceeds in lieu of homestead.27 Sale for reinvestment before original homesteader's death. Under some statutes, where decedent has converted the homestead into money for reinvestment in a home, but dies before effectuating his purpose, the widow is entitled to receive the proceeds as against creditors of the husband for investment in the homestead for herself and children. 28 Tender of money or security for payment. In order to authorize the sale of the homestead prop 30 erty when it is indivisible, it is not necessary that the value of the homestead right be tendered to its owner before a sale can be made; 29 it is sufficient if the payment is secured to be made from the proceeds of the sale before surrender of possession. [§ 5163] c. From Other Lands. Under some homestead provisions 31 the homestead may under some circumstances be given in other lands of the decedent.32 Thus, if the homestead occupied by decedent was of no value to the widow because encumbered to the extent of its full value, she will be entitled to select from land owned by decedent at the time of his death a homestead exemption conforming in value, quality, quantum of interest, and duration of enjoyment to the exemption provided by law.3 In Texas, where a mortgage of the homestead is forbidden, the widow is entitled to the homestead property free from any claim of a mortgagee under such a mortgage, and cannot be permitted to take in lieu thereof a greater quantity of other land of her deceased husband, which pertained to the assets of his estate for the payment of his debts.3 33 34 [§ 517] 4. Territorial Extent, Quantity of Interest, and Value 35. -a. In General. In ascertaining the widow's interest in the debtor's homestead, it may be permitted to estimate what interest she has in the premises as owner or otherwise in her own right, 36 and, as between her and the minor children, the value of her interest in the homestead as well as of their rights must be taken into account, P 290, 2 AmSR 834; Calmer v. Cal- | 93 NE 432. (4) Rule by statute mer, 15 N. D. 120. 106 NW 684. see infra note 23. (5) Rule in other jurisdictions see supra note 21 [a]. [a] Property not subject to division. (1) Where property of decedent is not capable of proper division the court cannot substitute therefor the payment of money to the widow in lieu of the homestead. Noah's Est., 73 Cal. 590, 15 P 290, 2 AmSR 834. (2) Where the homestead is indivisible without material injury the surviving husband or wife or minor children, as the case may be, are entitled as against the heirs or devisees, to hold the entire property as a homestead estate, although it exceeds the statutory limit of five thousand dollars in value. Calmer v. Calmer, 15 N. D. 120, 106 NW 684. (3) Rule in other jurisdictions see infra note 22 [a] 22. Hollis v. Watkins, 189 Ala. 292, 66 S 29: Hamilton v. Wilcox, 167 Mich. 551, 133 NW 615; Hoffman v. Hoffman, 79 Tex. 189, 14 SW 915. 15 SW 471; Clift v. Kaufman, 60 Tex. 64; Crocker v. Crocker, 19 Tex. Civ. A. 296, 46 SW 870. [al Where the property is not divisible in kind (1) it should be sold as an entirety and the exemption awarded to the widow from the proceeds. Hamilton v. Wilcox, 167 Mich. 551, 133 NW 615. (2) Thus where a widow was entitled to a homestead. not exceeding in value fifteen hundred dollars, to be carved out of a city lot on which was a residence, barn, etc., all having a market value of at least twenty-five hundred dollars, and a division SO as to give the widow the house and a part of the lot would leave the balance of the lot applicable to creditors of a value not exceeding three hundred dollars, the property was not divisible in kind. Hamilton v. Wilcox, supra. (3) Where the heirs or devisees seek to compel the surviving husband or wife to vacate an indivisible homestead which exceeded one thousand dollars in value, a court of equity should require the heirs or devisees to pay the person entitled to such homestead one thousand dollars. Grote v. Grote, 275 I11. 206, 113 NE 967; Richardson v. Trubey, 250 II. 577, 95 NE 971; Goddard v. Landes, 250 Ill. 457, 95 NE 477; Powell v. Powell, 247 Ill. 432, [b] In Texas the widow's homestead may be in land or in money, but not partly in both. Crocker v. Crocker, 19 Tex. Civ. A. 296, 46 SW 870. 23. See statutory provisions. [a] In Kentucky under St. (1903) § 1707, providing that a homestead shall be for the use of the widow. so long as she occupies it, and of the unmarried children of the deceased husband until the youngest is of age, but such land may be sold, subject to the right of the widow and children, if necessary to pay decedent's debts, the widow and children are entitled to such homestead as deceased, if living, could have claimed under §§ 1702, 1703, 1705, so that, the homestead right being in indivisible property of greater value than one thousand dollars, the whole property may be sold for decedent's debts, and one thousand dollars of the proceeds be set aside for use of the widow and children for such time as they would be entitled to use of a homestead. Warren v. Warren, 126 Ky. 692, 104 SW 754, 1199, 31 KyL 1101. the [b] In Nebraska, where the dwelling and adjacent land occupied as a homestead exceed the statutory value, and the house cannot be set apart from the residue of the tract, no legal estate passes to the widow, but in lieu thereof an equitable interest to the value, designated by the statute, in the entire tract passes thereunder. Wardell v. Wardell, 71 Nebr. 774, 99 NW 674. [c] In Vermont the act of 1857 provided for a sale of the residence property and the reinvestment of the proceeds, when a portion thereof could not conveniently be set apart for the widow. Chaplin v. Sawyer, 35 Vt. 286. 24. Terry v. Terry, 39 Tex. 310 (under statutes providing that the property reserved from forced sale or its value, if there is no such property, does not form any part of the estate of a deceased person where a constituent member of the family survives). 37 25. Wolverton v. Paddock, 3 Oh. Cir. Ct. 488, 2 Oh. Cir. Dec. 279 (this right is not conferred by a statute giving an exemption of a particular amount to be selected out of realty or personalty, by the head of a family, over and above the exemption of chattel property, where the exemptioner does not make a selection in his lifetime). 26. Shea v. Shea, 72 SW 7, 24 KyL 1702. 27. Evans v. Staggaman, 8 Oh. Dec. (Reprint) 244, 6 CincLBul 636. Compare Garner v. Bond, 61 Ala. 84 (Acts [1873] p 64 provides for an equivalent in money only where the homestead is sold under legal process during the life of the owner, or his personal representative sells after his death; and a decree of foreclosure of a mortgage of land including the homestead, not assented to by the wife, rendered after the mortgagor's death, allowing her two thousand dollars out of the proceeds of sale in lieu of the homestead itself, is erroneous). 28. Schuttloffel V. Collins, 98 Iowa 576, 67 NW 397, 60 AmSR 216. 29. Grote v. Grote, 275 Ill. 206, 113 NE 967. 30. Grote v. Grote, supra. 31. See statutory provisions. 32. Jackson V. Rowell, 87 Ala. 685, 6 S 95, 4 LRA 637; Mabry v. Harrison, 44 Tex. 286. 33. Steiner v. McDaniel, 110 Ala. 409, 20 S 54; Jackson v. Rowell, 87 Ala. 685, 6 S 95. 4 LRA 637. 34. Blair v. Thorp, 33 Tex. 38 (the mortgagee stands in no better attitude than the general creditors of the estate). See also supra § 299. 105. 35. Amount, extent. and value of property to which head of family is entitled see supra §§ 94-102. 36. Miles v. Hall, 12 Bush (Ky.) But compare Tinney v. Vittur, 134 La. 549, 64 S 407 (where the surviving wife, being head of a family, is in possession of community property as owner of an undivided one half and usufructuary of the other undivided one half, she is entitled to a homestead exemption of the whole property). 37. Stunz v. Stunz, 131 III. 210, 23 NE 407. But compare Russell v. 39 although her interest is not to be considered lessened by the fact that the children may also occupy the premises during their minority.38 Her rights in the homestead do not depend upon the amount paid from her separate estate in improvements or the discharge of encumbrances on the property." Where the homestead is sold, infant children may, in the discretion of the court, be given the interest on the amount exempted, or the present cash value of their estate, or a reinvestment of the fund in a homestead for their benefit ay be directed.40 In extent the privilege of survivorship is limited to one homestead for all, and of the statutory quantity. If there is an excess above the size fixed by statute, and the property is sold by an administrator, but is subject to homestead exemption, the purchaser obtains title to the excess. If the husband and wife own contiguous tracts, both occupied as a homestead, with the dwelling on the latter's land, she may have a homestead right in the husband's tract upon his death.** If a decedent was a tenant in common, the survivors are entitled to a full homestead right in his share 42 41 Russell, (Tex. Civ. A.) 234 SW 935 (in partition of real estate of a deceased husband as between his widow and surviving children, the homestead should be set aside to the widow at its full fee simple value as a portion of her interest in the common property, without deducting from such value a sum representing the value of her right to the use and occupancy of the homestead, under Con t. art 16 § 52). 38. Gore v. Riley, 161 Mo. 238, 61 SW 837. 39. Sanburn v. Deal, 3 Tex. Civ. A. 385, 22 SW 192. 40. Schnabel v. Schnabel, 108 Ky. 536, 56 SW 983, 22 KyL 234. 41. Carolina Nat. Bank v. Senn, 25 S. C. 572. 42. Barco v. Fennell, 24 Fla. 378, 5 S 9; Shippèy' v. Hough, 19 Tex. Civ. A. 596, 47 SW 672. 43. Anthony v. Rice, 110 Mo. 223, 19 SW 423. [a] The term "lot" is construed to mean a town lot and not a "tract" or "parcel." Wilson v. Proctor, 28 Minn. 13. 8 NW 830. 44. Buckler v. Brown, 101 Ky. 46, 39 SW 509, 825. 19 KyL 85. To same effect Lowell v. Shannon, 60 Iowa 713, 15 NW 566. See also Mason v. Columbia Finance, etc., Co., 99 Ky. 117, 35 SW 115, 18 KyL 40, 59 AmSR 451 (where the husband and wife own adjoining tracts of land, and it is all used and cultivated as one farm, the husband will be entitled to a homestead out of the part of the land owned by him, although the house which they occupied was actually on that part of the farm owned by the wife). 45. McClary v. Bixby, 36 Vt. 254, 84 AmD 684. 46. Crigler v. Connor, 11 SW 202, 10 KyL 957. [a] In Illinois the homestead estate to which the widow is entitled is limited to one thousand dollars in value. Wilson V. Illinois Trust, etc., Bank. 166 Ill. 9, 46 NE 740: Merritt v. Merritt, 97 Ill. 243. [b] In Wisconsin the homestead right of the widow is limited in value to five thousand dollars. In re Sydow, 161 Wis. 325, 154 NW 371. 43 of the land.45 [§ 5171⁄2] b. Value. The value of a survivor's homestead is frequently limited by statute," although the statutes of some jurisdictions have been construed as not imposing such a restriction." Value as of what time. In determining the amount thus exempt, it has been held that the value at the debtor's death will control and not the value when the homestead was acquired, although the contrary view also finds support. Where decedent failed to have his homestead assigned to him during his lifetime, the limits of the homestead estate and the value of the same, it has been held, must be determined in the proceeding for an allotment as of the present time.50 48 49 52 Matters considered in determining value. If the premises themselves are assigned, the value of improvements thereon, as well as of the land itself, must be considered in determining a survivor's exemption.51 But insurance money collected on a dwelling burnt before the allotment cannot be included in determining the value of the homestead.5 Encumbered property. If the estate is subject to quently adjudicated. Potter v. Clapp, | are absolute. She cannot be called 203_111. 592, 68 NE 81, 96 AmSR 322. on to account for the use and OC47. In re Adams, (Cal.) 57 P 569: cupancy, nor forced to purchase the Smith v. Smith, 99 Cal. 449, 34 P rights of her cotenants; nor is the 77; Schmidt's Est., 94 Cal. 334, 29 property subject to partition in kind. P 714; In re Walkerly, 81 Cal. 579, nor to sale for the purpose of divid22 P 888, 22 P 889. But see Tit- ing the excess of the proceeds'”). comb's Est., Myr. Prob. (Cal.) 55 [c] In Nebraska on the death of (under earlier statute). the homesteader the homestead vests in the widow for life without regard to its value. Meisner v. Hill, 92 Nebr. 435, 138 NW 583 [overr Tyson v. Tyson, 71 Nebr. 438, 98 NW 1076 and disappr expressions to the contrary in Wardell v. Wardell. 71 Nebr. 774, 99 NW 674; Teske v. Dittberner, 70 Nebr. 544, 98 NW 57, 113 AmSR 802; Meek v. Lange, 65 Nebr. 783, 91 NW 695]. [a] Review of allowance.-Although no limit is imposed, yet an abuse of discretion on the part of the probate court is subject to review. Adams v. Woodland Bank, 128 Cal. 380, 60 P 965, 57 P 569. 48. Long v. Brown, (Ala.) 89 S 614: McLane v. Paschal, 74 Tex. 20, 11 SW 837; Linch v. Broad, 70 Tex. 92, 6 SW 751. [b] In Mississippi under Code (1906) § 1659, providing that, where decedent leaves a widow to whom, with others, his exempt property descends, the same shall not be sub- [d] In South Dakota the survivject to partition during her widow- ing widow is entitled to the DOShood, etc., and § 2146, exempting session and Occupancy as against from execution land occupied as a decedent's heirs of the whole of the residence. the quantity of which property owned by decedent to the shall not exceed one hundred and extent of one hundred and sixty sixty acres nor the value thereof acres and occupied as a home by the sum of three thousand dollars, decedent and wife at the time of a surviving widow is entitled, as his death, although the property is against the heirs, to occupy the in excess of five thousand dollars homestead of the deceased husband in value. Hansen v. Hansen, 40 S. consisting of one hundred and sixty D. 114, 166 NW 427. acres irrespective of value, and the heirs cannot have partition thereof. Dickerson V. Leslie, 94 Miss. 627. 633, 47 S 659 ("So apt is the language of the learned judge delivering the opinion in the Moody Case, 86 Miss. 323. 38 S 322. that we can do no better than quote it. In the Moody Case Judge Truly said: "The limit of value placed by law on the amount of land which can be held as exempt is solely for the protection and benefit of creditors, to prevent unreasonable amounts from being held exempt from execution, to the prejudice of those to whom just debts might be due. But the question of value has no place in the consideration of the rights of the surviving widow to the use and occupancy of the homestead. The purpose of the legislature was to protect the surviving widow, to whom, with others, the exempt property might descend. by securing to her during her widowhood the undisturbed use and occu 49. In re Fowler, (Cal.) 20 P 81: Burdick's Est., 76 Cal. 639, 18 P 805; In re McCarthy, 7 Cal. A. 199, 93 P 1047; Ketcham v. Ketcham, 269 Ill. 584, 109 NE 1025; Garwood V. Garwood, 244 Ill. 580, 91 NE 672: Anderson v. Smith, 159 Ill. 93, 43 NE 306. See Turner v. Turner, 89 Ky. 583, 13 SW 6, 11 KYL 767 (where the homestead was valued at one thousand dollars when allotted to the debtor, but sold for five thousand four hundred dollars after his death, on petition of the guardian of his infant children, it was held that the children were entitled to the interest on the latter sum until the youngest became of age). [a] Thus, where the premises did not exceed the homestead value when the husband died, the widow cannot be deprived of any part thereof by a subsequent increase in value. Dinquel V. Dacco, 273 Ill. 117, 112 NE 337. 50. Mason v. Truitt, 257 Ill. 18. 100 NE 202. 51. McLane v. Paschal, 62 Tex. 102; Williams v. Jenkins, 25 Tex. 279. [el Accounting with heirs.-A pancy thereof. A law designed to widow, occupying one floor of a two-establish a beneficent public policy story flat which had belonged to her must be liberally construed in orhusband, the portion occupied by her der to completely effectuate the legbeing of greater value than one islative purpose. So we hold that thousand dollars, should account to the value of the homestead is not the heirs for the rent received by material in passing on the rights her from the other floor, especially of the surviving widow under Code 52. Ketcham v. Ketcham, 269 Ill in view of an understanding with 1892, § 1553 (Code 1906, § 1658). She 584, 590, 109 NE 1025 ("The insurone of the heirs that she should is entitled to continue to use and ance money received by appellant rent the premises, and that their re-occupy the homestead. So long was a thing apart from his homespective rights should be subse-as she remains a widow, her rights stead interest. . . and cannot be 53 a mortgage which takes precedence over the homestead right, in making the assignment the estate is to be valued as if it was free from the mortgage and the rights of the mortgagee will remain unaffected by the assignment, the operation of which will be merely to give the widow the right to hold the homestead assigned to her until proceedings to enforce the paramount right under the mortgage." Where the widow, entitled to a homestead, paid an encumbrance thereon created by her husband, the homestead should, for purposes of allotment, be valued on the basis of the difference between the value of the property and the encumbrance.54 If the property is worth more than both the statutory amount of exemption and the mortgage, and is sold to pay debts of the decedent, the survivor's homestead interest need not contribute to discharging the mortgage. 55 56 [518] I. Duration and Termination of Right -1. As Affected by Occupancy of Premises. Under the construction of the homestead provisions in some jurisdictions," continued occupation of residence on the premises is not required of the surviving spouse, or of heirs in whom the homestead laws vest the homestead estate free from the debts of the ancestor,58 in order to continue the extaken into consideration"). 57 53. Norris v. Moulton, 34 N. H. 392. 54. Garwood v. Garwood, 244 Ill. 580, 91 NE 672. 55. Hufschmidt v. Gross, 112 Mo. 649, 20 SW 679. 55. See statutory provisions. £7. Ill-Gibbs v. Gerdes, 291 Ill. 490, 126 NE 155; Smith v. Rittenhouse, 260 111. 599, 103 NE 569, LRA 1916A 997; White v. Plummer, 96 I. 394; Matter of Dyer, 201 Ill. A. 183. Under earlier statutes see Brinkerhoff v. Everett. 38 111. 263; Cabeen v. Mulligan, 37 Ill. 230, 87 AmD 247; Walters v. Peo., 21 Ill. 178. Minn. Holbrook v. Wightman, 31 Minn. 168, 17 NW 280. Mo.-Hufschmidt v. Gross, 112 Mo. 649, 20 SW 679; West v. McMullen. 112 Mo 405, 20 SW 628 [overr Kae v. Gross, 92 Mo. 647, 3 SW 840, 1 Am SR 767]. Mont.-Kerlee v. Smith, 46 Mont. 19, 124 P 777. Nebr.-Naiman V. Bohlmeyer, 97 Nebr. 551, 150 NW 829; Shearon v. Gof, 95 Nebr. 417. 145 NW 855: Cooley v. Jansen, 54 Nebr. 33, 74 NW 391; Durland v. Seiler, 27 Nebr. 33, 42 NW 741. [a] Reason assigned (1) for the rule is that under the homestead laws upon the death of either husband or wife "a new title is created which vests in the survivor for life unconditionally." Durland v. Seiler, 27 Nebr. 33, 37, 42 NW 741. (2) "These estates [the life estate in the widow and an estate in remainder in the children] are absolute and do not depend upon Occupancy." Naiman v. Bohlmeyer, 97 Nebr. 551, 150 NW 829. 64 Sufficiency of occupancy. As regards sufficiency of occupancy when required, it has been held that a guardian,63 or a guardian's tenant, may occupy for the ward, and that a tenant may occupy for the surviving spouse and children,65 although the surviving spouse may reside out of the state.66 The premises may be partly rented and partly used for cultivation and pasturage by the surviving spouse who resides elsewhere; .67 or the premises may be cultivated by a child who resides elsewhere, s may, as it has been held, be used by the beneficiary merely for storage of furniture.69 Minor children for whom their guardian has thought it desirable to find other temporary quarters cannot be considered as having abandoned the homestead.70 An unexecuted intention to occupy will not prolong the exemption.7 71 [519] 2. Abandonment" or a. By Surviving by residence thereon is not, there- ents unless they remain together as fore, inconsistent with the continu- a family and occupy the property ance of the former estate." Smith as a homestead). v. Rittenhouse, supra. [c] Remarriage and removal from premises.-The widow does not forfeit her homestead by second marriage and removal to the home of her second husband. Hufschmidt v. Gross, 112 Mo. 649, 20 SW 679; West v. McMullen, 112 Mo. 405, 20 SW 628 [overr Kaes v. Gross, 92 Mo. 647, 3 SW 840, 1 AmSR 767]. See also infra § 519. [d] Removal of the children from the premises does not affect the rights of the widow. Slattery v. Keefe, 201 Ill 483, 66 NE 365; Kimbrel v. Willis, 97 Ill. 494. 58. Miller v. Finegon, 26 Fla. 29. 7 S 140, 6 LRA 813; Maguire v. Kennedy, 91 Iowa 272, 59 NW 36; Kite v. Kite, Iowa 491, 44 NW 716: Baker v. Jamison, 73 Iowa 698, 36 NW 647; Johnson v. Gaylord, 41 Iowa 362; Howe V. McGivern, 25 Wis. 525. See also supra § 510. [a] Reason for rule.-"The interests of the heirs are exempt from liability for their debts, not because of any homestead right they have in the premises, but because of the homestead right of their ancestor.' Kite v. Kite, 79 Iowa 491, 495, 44 NW 716. [b] Nonresident heir.- The above rule has been applied even in case of an heir residing out of the state. Maguire v. Kennedy, 91 Iowa 272, 59 NW 36. 59. See statutory provisions. 60. Kan.-Barbe V. Hyatt, 50 Kan. 86, 61 P 694. See also Dayton v. Donart, 22 Kan. 256 (which seems to sustain this rule). Ky. Clay v. Wallace, 116 Ky. 599, 76 SW 388. 25 KyL 820; Jones v. Green, 83 SW 582, 26 KyL 1191. Mass.-Abbott v. Abbott, 97 Mass. 136. Miss. Acker v. Trueland, 56 Miss. 30. But see Brown V. Brown. 33 Miss. 39 (decided under prior statute). N. H.-Norris v. Moulton, 34 N. H. 392. [b] Where a homestead has been set apart (1) to a surviving wife. she takes a life estate which may be alienated. Kerlee v. Smith, 46 Mont. 19, 124 P 777. (2) After the assignment of the homestead, it is not essential to the continuance of the estate that the widow should continue to reside upon the premises. She may occupy them by tenancy, or convey them by deed and her estate does not differ from an N. D.-Fore v. Fore, 2 N. D. 260, ordinary estate for life. Gibbs v. 50 NW 712. Gerdes, 291 Ill. 490, 126 NE 155; Okl.-Belt v. Bush, 176 P 935. Smith v. Rittenhouse, 260 Ill. 599, Tenn.-Hicks V. Pepper, 1 Baxt. 602, 103 NE 569, LRA1916 A 997: White v. Plummer, 96 Ill. 394; Matter of Dyer, 201 Ill. A. 183. (3) "It is not dependent upon her residence, and the acquisition of an estate of homestead in other lands [29 C. J.-65] 42. Tex.-Petty v. Barrett, 37 Tex. 84. 61. Hicks V. Pepper, 1 Baxt. (Tenn.) 42. See Petty v. Barrett, 37 Tex. 84 (children cannot succeed to the homestead rights of their par 62. Harle v. Richards, 78 Tex. 80, 14 SW 257; and cases supra note 61. [a] Where the widow ceases to use a business homestead for any business, this will amount to an abandonment of business homestead rights in the property. Harle V. Richards, 78 Tex. 80, 14 SW 257. Abandonment see infra §§ 519-521. 63. Booth V. Goodwin, 29 Ark. 633. 64. Shirack v. Shirack, 44 Kan. 653, 24 P 1107; Rockwood V. St. John, 10 Okl. 476, 62 P 277. 65. Ala. Garland v. Bostick, 118 Ala. 209, 23 S 698. Ky.-Overby v. Williams, 170 Ky. 140, 185 SW 822; Phipps v. Acton, 12 Bush. 375. N. J.-Lloyd v.. Turner, 70 N. J. Eq. 425, 62 A 771. Tenn.-Peterson v. Goudge, 6 Tenn. Civ. A. 288. Tex.-Foreman V. Meroney, 62 Tex. 723; Perkins v. Perkins, (Civ. A.) 166 SW 915. [a] In Arkansas under a statute giving the surviving wife possession of husband's chief divelling house and farm attached until assignment of dower, a wife is not required actually to reside on such premises, but may occupy them through tenants and receive rent therefrom, until dower is assigned. McDaniel v. Conlan, 134 Ark. 519, 204 SW 850. [b] If a widow remarries and the second husband has a homestead, in Illinois, she cannot, by her tenant, retain an estate of homestead unassigned in the property of the first husband. Home Ins. Co. V. Field, 42 111. A. 392. 66. Peterson v. Goudge, 6 Tenn. Civ. A. 288. 67. Edwards v. Clemmons, (Tex. Civ. A.) 181 SW 840. 68. Deering v. Beard, 48 Kan. 16, 28 P 981. 69. Brettum V. Fox, 100 Mass. 234. 70. Smith v. Landis, 93 Kan. 453, 144 P 998. 71. Hicks v. Soaper, 6 KyL 364. 72. Abandonment or waiver: Generally see supra §§ 343-412, 481489, 494. By alienation see supra § 487, and infra 545. By antenuptial or postnuptial contract see supra § 482. Wife. It is very generally held that the widow's right of homestead acquired by survivorship may be lost by abandonment, 78 although no question of an abandonment of a homestead can arise during a possession which was not referable to the homestead right.7 Abandonment may be shown by acts and conduct.75 Whether acts of a widow amounted to the abandonment of her homestead is ordinarily a question of fact.76 74 Permanent removal or absence. Under many homestead laws a permanent removal by the widow operates as an abandonment of her homestead right in the premises;" and it has been held that the fact that she was ignorant of her homestead rights at the time of her removal will not prevent the loss of such rights; but under other homestead laws permanent removal from the homestead premises will not work an abandonment of the homestead exemption,79 at least where the title has become vested absolutely in the widow.80 While Short or temporary removal or absence. the removal from a homestead for any length of time, however short, with a settled purpose to quit its occupancy and take up a domicile elsewhere, constitutes an abandonment,81 an abandonment of the homestead premises sufficient to deprive the widow of her right to a homestead is not effected by mere temporary absence with intent to return.82 The considered as having abandoned her homestead). By election between homestead and [b] Evidence insufficient to show distributive share or year's sup- abandonment.-Smith v. Ferry, 43 port see supra §§ 484, 485. Wash. 460, 86 P 658. Evidence of abandonment generally see supra §§ 403-410. By election to take under will see supra § 483. By remarriage and removal from the premises see supra § 486. By surviving spouse on rights of children see infra § 493. 73. Ala. Thompson v. Miller, 204 Ala. 502, 85 S 689; Gilbert v. Pinkston. 167 Ala. 490, 52 S 442, 140 AmSR 89; Norton v. Norton, 94 Ala. 481, 10 S 436. Ark.-Neeley v. Martin, 126 Ark. 1, 189 SW 182; Felton v. Brown, 101 Ark. 658, 145 SW 552. 76. Love v. McCandless, 157 Ky. 352, 163 SW 197. See also supra § 412. 77. Ill.-Kloss v. Wylezalek, 207 Ill. 328, 69 NE 83, 99 AmSR 220; Farnan v. Borders, 119 Ill. 228, 10 NE 550; Kingman v. Higgins, 100 Ill. 319; Shepard v. Brewer, 65 Ill. 383; Buck v. Conlogue, 49 Ill. 391; Wright v. Dunning, 46 Ill. 271, 92 AmD 257; Brown v. Morgan, 84 Ill. A. 233. Iowa.-Anderson v. Blakesly, 155 Iowa 430, 136 NW 210; Peebles v. Bunting. 103 Iowa 489. 73 NW 882; Hornbeck v. Brown, 91 Iowa 316, 59 NW 33; Butterfield v. Wicks, 44 Towa 310; Orman v. Orman, 26 Iowa 361. Kan.-Dayton v. Donart, 22 Kan. Ky.-Purdy V. Melton, 164 Ky. 749. 176 SW 346: Phillips v. x1- |256. liams, 130 Ky. 773, 113 SW 908; Ky-Purdy v. Melton, 164 Ky. 749, Bryant v. Bennett, 61 SW 1004, 22 KyL 1866; Crabb v. Potter, 14 SW 501, 14 KyL 430. Mass.-Paul V. Paul, 136 Mass. 286. Minn.-McCarthy v. Van Der Mey, 42 Minn. 189, 44 NW 53. Mo.-Weatherford v. King, 119 Mo. 51, 24 SW 772; Richards v. Smith, 47 Mo. A. 619. Nebr.-Nebraska L. & T. Co. V. Smassall, 38 Nebr. 516, 57 NW 167. S. C.-Trimmier v. Winsmith, 41 S. C. 109, 19 SE 283. S. D.-Bailly v. Farmers' State Bank, 35 S. D. 122, 150 NW 942. Tenn.-Mason v. Jackson, (Ch. A.) 57 SW 217. Tex.-Craddock V. Edwards, 81 Tex. 609, 17 SW 228; Harle V. Richards, 78 Tex. 80, 14 SW 257; Grothaus v. De Lopez, 57 Tex. 670; Hoefling v. Hoefling, (Civ. A.) 167 SW 210; Gaines v. Gaines, 4 Tex. Civ. A. 408. 23 SW 465. [a] If the estate is acquired under the husband's will and not by statute, it is not subject to loss by removal from the premises. Carr v. Carr, 177 Ill. 454, 52 NE 732. [b] In Alabama the act "For the protection of widows and minor children" (Acts [1888-1889] p 113) being intended to prevent a forfeiture by removal from the homestead by the widow or minor child, in favor of the heir or creditor of the decensed husband or father, applies only when the right of occupancy is for the life of the widow or the minority of the children; but the provisions of such act have no application when the widow and children have an absolute title to such homestead. Gist v. Lucas, 122 Ala. 557. 25 S 41. 176 SW 346; Freeman v. Mills, 101 Ky. 142, 39 SW 826, 19 KyL 316: Bryant v. Bennett, 61 SW 1004, 22 KvL 1866: Crabb v. Potter, 14. SW 501. 12 KyL 430. Mass.-Pratt v. Pratt, 161 Mass. 276. 37 NE 435; Paul v. Paul, 136 Mass. 286. S. C.-Trimmier v. Winsmith, 41 S. C. 109, 19 SE 283. Tenn.-Coile v. Hudgins, 109 Tenn. 217, 70 SW 56. Tex.-Craddock Edwards, V. 81 Tex. 609, 17 SW 228; McCaskey v. Morris, 40 Tex. Civ. A. 390, 89 SW 1085; McAllister v. Godbold. (Civ. A.) 29 SW 417: Gaines v. Gaines, 4 Tex. Civ. A. 408, 23 SW 465; Sanburn v. Deal, 3 Tex. Civ. A. 385, 22 SW 192. [a] Business homestead.-It has been held that the widow's business homestead exemption is lost by her failure to conduct a business upon the premises. Harle v. Richards, 78 Tex. 80, 14 SW 257. But compare Clift v. Kaufman, 60 Tex. 64 (the exempt character of a business homestead is not lost by the fact that the survivors do not intend to continue the decedent's business upon the premises). [b] Removal from state. (1) The widow's rights in the homestead are forfeited in favor of the husband's creditors by her removal to another state subsequently to the husband's death. Tinsley v. Tinsley, 193 Ky. 324, 235 SW 730; Hicks v. Pepper, 1 Baxt. (Tenn.) 42; McElroy v. McGoffin, 68 Tex. 208, 4 SW 547; Hoefling v. Thulemeyer. (Tex. Civ. A.) 142 SW 102. (2) Removal from the state is inconsistent with any right remaining to her former homestead and precludes her from 74. Sotek v. Sotek, 253 Ill. 302, afterward assigning her right. Mc97 NE 656 (when the widow had the Elroy v. McGoffin, supra. See Mcentire estate, and when it was un- Bride v. Hawthorne, 268 111. 456. 109 certain whether the remainder would NE 262 (while the question of the be accepted subject to the condi- abandonment of a homestead is tions in her favor). largely one of intention, a widow who, after her husband's death, left his home on the avowed ground that she was unable to reside with her stepchildren, and took up her residence in a foreign state, must be 75. Love v. McCandless, 157 Ky. 352, 163 SW 197. [a] Evidence sufficient to show intent to abandon-Taree v. Spriggs, 149 Ky. 20, 147 SW 754. 78. Paul v. Paul, 136 Mass. 286. 79. Hufschmidt v. Gross, 112 Mo. 649, 20 SW 679 [overr in effect Kaes v. Gross, 92 Mo. 647, 3 SW 840, 1 AmSR 767; West v. McMullen, 112 Mo. 405, 20 SW 628]. See also supra § 518 cases to the effect that in certain jurisdictions continued occupancy of the homestead premises by the wife is not necessary to a continuance of the homestead exemption. So. Munchus v. Harris, 69 Ala. 506; Brown v. Brown, 33 Miss. 39 See also supra §§ 508, 518. [a] In Alabama (1) the rule formerly was that a permanent removal from the homestead premises by the widow operated as an abandonment of the homestead rights. Norton v. Norton, 94 Ala. 481, 10 S 436; Barber v. Williams, 74 Ála. 331. (2) A subsequent statute provides that, when homestead exemption has been allotted to the widow and minor children, they shall not be held to have abandoned or forfeited the same by removal therefrom. In construing this statute it has been held that the widow and children of the decedent to whom a homestead has been allotted will not be held to have abandoned the same by failure to file a declaration of homestead claim on removal from the land. Sewell v. Sewell, 156 Ala. 616, 47 S 204. (3) The statute providing that, when a declaration of claim to a homestead exemption has been filed in the office of the judge of probate, leaving the homestead temporarily, or a leasing of the same, it shall not operate an abandonment thereof, or render it subject to levy and sale, relates exclusively to claim of homestead against levy and sale under process, and has no application to the case of an assertion of title to the homestead by the heirs of decedent on the ground that the widow and children have abandoned the same. Sewell v. Sewell, supra. 81. Anderson v. Blakesly, 155 Iowa 430, 136 NW 210. See also cases supra notes 76-80. 82. Ala-Garland v. Bostick, 118 Ala. 209, 23 S 698. Ark-Harris v. Ray, 107 Ark. 281. 154 SW 499. Ill-McBride v. Hawthorne, 268 Ill. 456. 109 NE 262; Dunbar v. Dunbar, 254 Ill. 281, 98 NE 563; Loveless v. Thomas, 152 Ill. 479, 38 NE 907: Reilly v. Reilly, 26 NE 604; Walters v. Peo., 18 Ill. 194, 65 AmD 730. Iowa.-Anderson v. Blakesly, 155 Iowa 430, 136 NW 210; Zwick v. Johns, 89 Iowa 550, 56 NW 665; Jones v. Blumenstein, 77 Iowa 361, 42 NW 321. Kan.-Deering v. Beard, 48 Kan. 16. 28 P 981: Brury v. Smith, 8 Kan. A. 52, 53 P 74. Ky-Demarest v. Allen, 189 Ky. 32, 224 SW 458; Sansberry v. Simms, 79 Ky. 527; Phipps v. Acton, 12 Bush 375. La-Veronie's Succ., 147 La. 12. 84 S 439. Mass.-Pratt v. Pratt, 161 Mass. 276, 37 NE 435; Brettun v. Fox, 100 Mass. 234. Miss.-Campbell v. Adair, 45 Miss. |