Squire v. Mudgett , 63 N.H. 71 ( 1884 )

It was decided in Squire v. Mudgett, 61 N.H. 149, that this defendant was entitled to a homestead in the life estate of her father upon which the plaintiff's execution was levied; and the material question now is as to the extent of her homestead right. That is to say, Is it five hundred dollars' worth of the land in which the life estate exists? or, Is it such a part as that sum bears to the value of the whole life estate?

The answer cannot be regarded as doubtful, for the statute estimates and measures the homestead right by value, and by nothing else. G. L., c. 138, ss. 1, 5. The character of the estate out of which a homestead is to be taken is therefore of no consequence, because, whatever may be the nature of such an estate, in duration or extent, if it is sufficient to support a homestead, the value of that right can alone be considered in its assignment.

But it is argued that the effect of this construction is to give to the defendant a more extensive homestead territorially than she would be entitled to were the father an owner in fee simple of the premises levied upon, and that it is not conceivable that the legislature so intended. This argument may be plausible, but it is not sound. It not only overlooks the language of the statute, which is so plain and imperative that it closes the door against discussion, but it also interpolates and substitutes quantity for value, which is manifestly another and a very different thing.

But, aside from the terms of the statute, the force of the argument is destroyed by the obvious fact that a homestead right in an estate less than a fee is not as valuable as a homestead right in the fee, and it must therefore be of a correspondingly greater extent territorially in order to effect an equality in the rights of the respective owners. And this, it is conceived, was the reason why value was made the measure of the homestead right in all cases by the legislature, for there is no other standard which would operate so equally, or which would so well secure the benefits intended to be conferred by the homestead act.

The defendant, during her minority, is entitled to a homestead out of the life estate, unless sooner terminated; but whether such homestead will attach to the store and store shed, is a question for the decision of which more facts are necessary.

Case discharged.

CARPENTER, J., did not sit: the others concurred.