Locke v. Rowell , 47 N.H. 46 ( 1866 )

Nesmith, J.

The plaintiff claimed title to the land, where the trespass was committed, by virtue of the actual possession thereof, and the assignment of her homestead estate in said premises, agreeably to the provisions of chap. 196, of the Compiled Laws. The defendant claimed title to the same premises by the purchase of the reversion of plaintiff’s life estate, and that plaintiff had forfeited her life estate by the act of leasing her lands to two separate tenants, in the years 1861 and ’62, and a residence elsewhere.

Said act creating said homestead, among other things, provides, "that such homestead shall not be assets in the hands of an administrator for the payment of the debts, nor subject to the laws of distribution, or devise, so long as the widow or minor children, or any, or either of them shall occupy the same.” It may be conceded that a homestead, created by virtue of our statute, has the relations and liabilities incident to conditional estates for life. Atkinson v. Atkinson, 37 N. H. 436.

The continued personal occupation of the estate by the plaintiff, or her minor daughter, is claimed by the defendant to be the subsequent condition, upon which they may hold their estate. And the question is, has there been a breach of the implied legal condition here, so that plaintiff has forfeited her estate, as a consequent penalty ? The general rule of construction applicable here is, that such conditions subsequent, when relied on to work a forfeiture of the estate, must be construed strictly, or in other words liberally in favor of the holder of the estate. 1 Wash. Real Estate, ch. 14, sec. 5; Merrifield v. Cobleigh, 4 Cush. 178; 4 Kent’s Com. 129, 131.

Under the finding of the court, and the evidence in this case, it does not appear reasonable to us to apply the doctrine of forfeiture to plaintiff’s little heritage. We cannot think it was the intention of the legis-' lature to prevent temporary contracts of this nature, where it became the manifest interest of the owners of the homestead right to part with it for a limited time. Such a construction would operate severely upon those, situated like the plaintiff, who are not presumed to have had means either to do the work themselves, or to hire laborers to carry on their land, and who could not from its income obtain means to pay for the adequate labor, and also at the same time to maintain themselves from their little estates comfortably. If plaintiff could raise small crops, or own a cow, she had no barn in which to put either. The rents of her estate, as realized by her, or the value of the reversion, when purchased by Simonds, indicate clearly that she must rely upon other sources for her own support, as well as for that of her child.

At comm on law, a lease for years by a tenant for life was never looked upon to create a forfeiture, because the lessee for years was originally but a bailiff to the freeholder, and the tenant for life only had the freehold, and was to answer the services, and he in reversion was in nowise to be affected by it, there being nothing done to dispossess him. 4 Comyn’s Digest, 396, and note; 1 Term Rep. 738; 2 Taunt. Rep. 202.

This is the sensible doctrine applicable to this case. The defendant, as the reversioner, was not disturbed in the enjoyment of his estate. No more waste or injury could be presumed to visit him, whether the homestead or life estate was enjoyed by the plaintiff or her tenant. Erom the defendant’s deed, he bought nothing but the reversion. It is only the unequivocal purpose or act of the plaintiff, which should deprive her of her estate, or an absolute abandonment thereof, such as is evinced by a sale and conveyance thereof, and a substitution of a like estate elsewhere, or other undoubted change of domicil. Moss v. Warner, 10 Cal. 296; Am. Law Reg. Oct., 1862; Hoit v. Webb, 36 N. H. 158; Drury v. Bachelder, 11 Gray 214; Dalanty v. Pynchon, 6 Allen 570; Lazell v. Lazell, 8 Allen 576. The two latter cases are strongly in point, and the reasoning of the court appears to us conclusive.

In Dalanty v. Pynchon, there was for a year a change of residence of the holder of the homestead, and a lease of the premises for that time to another person, but evidently with the intent to retain, and this was held no abandonment. In Lazell v. Lazell, the husband of the petitioner removed from land and buildings, occupied as a hotel in Cheshire, Mass., in the spring of the year 1863, relinquishing the premises to his son, and removed to another house in Cheshire, where he lived until his death in November of the same year. His widow petitioned for a right of homestead, to be assigned in the premises, occupied as the hotel. The petition and hearing was in 1864. After the decease of her husband the widow had made no re-entry into the premises occupied as the hotel. Upon this state of facts, the court say, the mere fact of cessation to occupy for a time is not an abandonment of the estate. Nothing short of a voluntary abandonment of an unequivocal character, and so understood by all the parties in interest, would divest - the estate of a homestead interest charged thereon, if such defence can avail at all.

It appears clearly to us, under the circumstances surrounding the plaintiff here, that we have no right to infer that a lease of her premises for one year only at a time, could imply the intent finally to abandon or surrender her estate. It appears to us, she only intended to adopt the most profitable mode of enjoying her estate for a limited time. Her absence from the premises was to obtain a living for herself and daughter. Her intention to retain becomes manifest from the fact, that, under the contracts as made, she must collect her rents, pay her taxes, krespective of the evidence, that more or less of the furniture remained in her house, and required attention and visits from time to time. There is no evidence that she expressed any purpose to change her domicil. The fact that the plaintiff actually resumed a pedis possessionem of her premises, after the expiration of the second lease, should have operated as notice to the defendant and all the world, that she had never permanently abandoned her estate, or intended so to do.

The argument of the defendant would practically deprive the soldier, or mariner, from reaping a benefit from a homestead right, provided the former was required to perform a campaign duty of one year, or the latter a voyage of the same length.

As to the question that verbal testimony was admitted by the court to show what farm she rented — the term farm, or homestead farm, is ambiguous. What is meant by such expressions may be shown by parol evidence. The limits, boundaries, and meaning of the word, and of such estates, are commented upon at length in Bell & als. v. Woodward, 46 N. H. 315, and cases cited. So also, a party may testify as to the intent as manifested by the act of removal from one town to another, or a change of domicil. Fisk v. Chester, 8 Gray 506; 1 Allen 474; Thorndike v. Boston, 1 Met. 242.

Questions of this nature are proved as matters of fact, and are for the jury.

Judgment on the finding of the court for plaintiff.