Spaulding's Appeal , 52 N.H. 336 ( 1870 )

Sargent, J.

The homestead law of 1851, which provided that the family homestead, not exceeding $500 in value, should not be subject to the laws of distribution or devise so long as occupied by the widow or minor children, was repealed by the General Statutes, chapter 273, section 14. This repeal took effect January 1, 1868, and the new law took effect from the same date. But the new statute differed very materially from the old, — General Statutes, chapter 124, section 1, — which is the only section under which provision is directly made for a homestead, being that “ the wife, widow, and children of every debtor who is owner of a homestead, or of any interest therein, occupied by himself and his family, shall be entitled to so much of said homestead or interest as shall not exceed in value five hundred dollars, as against the creditors of such debtor and his grantees, for and during the life of such wife or widow, and the minority of such children.”

This new provision of the law, as will be seen, only gives a homestead as against creditors and grantees of the debtor, and not as against heirs; so that by this provision the lauds, in the case before us, would pass directly to the children upon the death of the intestate, in March, 1868, they being the lieirs-at-law, and the case finding that the personal property in this case is more than sufficient for the payment of the debts and expenses of administration.

At the Juno session, 1868, this provision of chapter 124 was so modified as to give a homestead against heirs as well as against creditors and grantees. Laws of 1868, ch. 1, secs. 33, 37. Whether that omission in the General Statutes was intentional or accidental, we do not know. But it is enough for us to know that this provision for a homestead as against heirs is omitted, no matter for what reason ; and where some parts of a revised statute are omitted in the revision, they are not-to be revived by construction, but are to be considered as annulled. Leighton v. Walker, 9 N. H. 59; Wakefield v. Phelps, 37 N. H. 304; State v. Wilson, 43 N. H. 419, and cases cited.

But it is claimed that there are some other provisions of the General Statutes which clearly recognize the existence of homestead rights in the widows of those who die without minor children, and whose estates are solvent, and leave personal property, as in this case, more than enough to pay all debts and expenses. And there is no questionabut that, in order to ascertain what the law is upon any subject, we are not to look at any single provision, but to all acts in pari materia.

In this case, the acts are all contemporaneous;—and see ch. 124, sec. 1, above, and the several sections of chaps. 183,184, and 185, cited by the appellant, and also ch. 273, sec. 14, above, which expressly repeals the homestead law of 1851; — of these several sections cited by the appellant, she selects one as being as strongly in her favor as any, and places her claim upon its clear and distinct provisions. Chapter 183, sec. 11, is as follows : “The widow of any person deceased, intestate, leaving lineal descendants, shall be entitled, in addition to her dower and homestead, to one third part of the personal estate, after the payment of the debts and expenses of administration.”

It will be observed that this, and the other provisions which refer to dower and homestead, were designed to give additional shares or portions of the personal property to the wife. In some sections, certain shares are given in addition to dower and homestead ; and in others, as in the eighth section of the same chapter, a half is given, after payment of debts, — the half to include dower and homestead. It was not the design of any of these sections to give, to regulate, or modify the rights of homestead or of dower; but, simply taking those rights to be what other portions of the statute had expressly made them, all these-sections and provisions were made to give the widow a certain share of the personal property, either exclusive of dower and homestead, or, including those, to give her a certain share of the whole estate.

And, when it is said that she is to have one third of the personal property in addition to her dower and homestead, it does not mean that she must necessarily have both a dower and homestead, or either of them; but the meaning is, that this amount or share of personal property is to be in addition to such rights of dower and homestead as may exist in her favor, if any. There may be no such right; but if there is, then the specified allowance is to be in addition to that, whatever it may be.

And there are cases which would come under and require this exception, even if the right of homestead is to be regulated only by sec. 1, ch. 124, supra. Suppose the husband died just before January 1, 1868, but the estate is to be settled after that date: the homestead right would be governed by the law in force at the time of the husband’s death. The wife and widow might have a right of homestead as well as a right of dower in lands, under the old law, where the estate was to be settled according to the provisions of the old law, although after it was repealed and while the new law was in force.

We have been unable to find any section under which there would not be some cases in which homestead as well as dower would be held by the widow, and yet the new law, giving her in addition to these a certain share of personal property, would also apply. And if there are any cases to which the statute in its present form would apply, then there would be no necessity of giving any construction to the statute but the plain and obvious one, that by dower and homestead are meant just such rights as the wife has to both or either of them, but that she might have one, or the other, or both, or neither, and it would not interfere with the plain provisions and evident intention of the statute.

Looking at all these provisions in that light, we see nothing that requires or that would necessarily tend to lead us to give the construction to these provisions which the appellant claims. And we are the rather inclined to hold to the plain and simple construction of the statute which the legislature have passed, without undertaking to change it by any forced construction. If the legislature did not make any mistake in their law, then it means and was intended to mean a very different thing for homestead from that set off by the old law ; and we should not be justified in making the law a totally different thing, by our construction, from what they intended and actually made it. But if the legislature did make a mistake, they alone can rectify if; and the law is not to be changed from its plain meaning for the purpose of correcting that supposed error, by any forced construction by the court. The decree of the judge of probate

Must be affirmed.