Marcotte v. Messick ( 1880 )

Marr, J.

Counsel for appellant maintains that as the property in controversy belonged to the community, it can not be the homestead of the husband, and he cites in support of this Henderson v. Hoy, 26 Ann. 156.

Henderson was one of six heirs, and his judgment creditor seized his interest in the succession of his deceased father, an undivided sixth. This was merely an incorporeal right. In this case the thing seized is a tract of land. The fact that it belonged to the community does not affect the right of homestead. The surviving husband has the usufruct during his natural life or until his second marriage, of the share of the community inherited by his minor child. It may never be necessary to have a division in kind of the property, and if it should become necessary, nothing in the record authorizes the presumption that the property is not susceptible of division in kind. The homestead or family residence might fall to the husband in the partition.

Judgment affirmed.