Horn v. Tufts , 39 N.H. 478 ( 1859 )

Bell, C. J.^*

. In the case of Hoitt v. Webb, 36 N. H. 166, the question arose in what property a widow is entitled to claim a homestead. The husband owned two houses, standing on different lots, in one of which he lived with his wife and family, and the other was leased to a tenant. The wife had her dower assigned to her in the house in which her husband lived, and she claimed her homestead in the other house and lot. It was held that “ homestead means the home place; the place where the home is. It is the home, the house and adjoining land, where the head of the family dwell; the home farm. It does not extend to other tenements, lots and farms, that are not occupied personally by the owner and his family; houses in which they do not dwell, and farms on which they do not live. It cannot apply to leased property occupied by tenants, where the owner does not dwell.”

From this description we think it follows that, as a man can have but one home at the same time (Abington v. North-Bridgewater, 23 Pick. 177) so he can have but one homestead. As, by gaining a new home, he necessarily loses the old, so if he acquires a new homestead at his new home, his old homestead, and all rights appertaining to it, are necessarily lost. Many men change their homes frequently, and with each change of home purchase new farms and new buildings, which thenceforth become their homesteads. But we think the homestead exemption cannot be construed to apply to more than one homestead at the same time. In this respect the homestead right is entirely unlike the right of dower, to which, in certain respects, it has been compared, and to which it has certain analogies. The right of dower attaches itself to every parcel of real estate to which the husband may become entitled during the continuance of the marriage relation; and the estate which may be claimed and assigned to the wife may be of unlimited value; but the homestead right can be assigned in only one estate, and its value cannot in any event exceed five hundred dollars.

Though it is provided by the statute that no release or waiver of the homestead shall be valid unless made by deed, executed by the husband and wife; or, if the wife is dead and there are minor children, by the deed of the husband with the consent of the judge of probate, yet we think it clear that the inchoate right of the wife and minor children in one estate, occupied as a homestead, from the very nature of the exemption, must cease with the acquisition of a new homestead, to which the exemption must afterwards apply.

On the same principle, if the husband, having a homestead of greater value than five hundred dollars, shall dispose of a part of it, the reduced estate may become from that time the homestead, if it is occupied as such, and the law on the subject will cease to apply to the part so sold.

In the case of Hoitt v. Webb, before cited, it was held that “the fact that the house'and lot occupied by the husband and family was not of the value of five hundred dollars, does not change the aspect of the question. This fixes the limit beyond which the amount exempted shall not extend, but it does not require that the property exempted shall reach that sum, nor that other property, not occupied as a homestead, shall be taken to make up the value. If a person chooses to occupy a homestead of less value than five hundred dollars, and to rent his other real estate, he has a perfect right to do so, but other property cannot be exempted.”

The principle held in that case governs in this. Jacob Horn had the right to dispose of his estate, or any part of it; and if he retained, or afterwards acquired a new homestead, the purchaser of the old estate would hold it, free from the homestead claim. As he could sell such part of the estate, marked by such limits as he chose, so he may sell any share of the estate that suits his convenience. "What remains is still, if he continues to occupy it, his home; the family homestead of the head of his family; and it is to this reduced homestead alone that the statute applies. The deceased, having in this case conveyed to his daughter one undivided half of what had been his homestead farm, and having continued to occupy the other half as his own homestead, the right of his wife became limited to that half, and she can claim no interest in the part thus conveyed, under the statute in question.

Another question arises upon this appeal, relating to the course of proceeding to be pursued in setting off the homestead to the widow. In the case of Norris v. Moulton, 34 N. H. 394, it was held that a widow who continues, after the decease of her husband, to occupy the dwelling which constituted the family home at the time of his death, may have a homestead assigned to her by the judge of probate, by virtue of the powers given to him by the Revised Statutes, to cause the dower and share of the widow in the real estate of any person deceased to be assigned to her. But the authority of the judge of probate in such a case extends only to the estate of which the husband died seized. In Atkinson v. Atkinson, 37 N. H. 434, it was held that the deed of the husband alone will convey the estate, subject to the inchoate right of the wife and minor children, if any, after his decease ; and that she may have her remedy to obtain an assignment by a.bill in equity, or by the statute proceeding, by petition for partition, under chapter 206 of the Revised Statutes. In the case of Gunnison v. Twitchel, 38 N. H. 62, the jurisdiction of the Supreme Court to set off the homestead of a widow was distinctly asserted, though it was decided that such homestead was not assignable, and that a bill or petition for that purpose could not be maintained by an assignee.

The general principle being, as we conceive, well settled that the authority of the courts of probate to cause a division of real estate to be made, is confined to two cases ; that is, where the estate in question is a part of the estate of a person deceased, or where there is no dispute about the title; and there being no pretence that the estate conveyed to Mrs. Tufts was part of the estate of her father at his decease, and the claim of the petitioner to any part of it being denied, the court of probate decided properly that the petition, so far as it respected her land, could not be sustained in that court, and so far the decree must be affirmed. As to the other half it must be reversed.

* Dob, J., did not sit.