In re Estate of Moore

Myrick, J.: This is an appeal from an order denying the application of the widow of deceased that a homestead be set aside to her out of the separate property of her late husband. The deceased died October 30th, 1871, leaving the petitioner his widow, and four minor children by a former marriage, to wit: Fred W., Alice, Charles, and Stella. A son, William II., was born after the death of the intestate. On the 4th of March, 1872, letters of administration were issued to Thomas W. Moore, a brother of deceased, and the estate is still in process of administration. Since the death of intestate, the widow continued to reside on the premises described in her petition until the commencement of these homestead proceedings, when she voluntarily left the same. The children of the former marriage have not continued to reside with her. During nearly all the time Fred W. has resided elsewhere, at school and other places. About a year before filing the petition, Charles and Alice went away to school, and Stella remained with her only for a time. Her own son has continued to reside with her. On the 20th of October, 1877, Thomas W. Moore was, by the Probate Court, appointed guardian of the persons and estates of Fred W., Charles, Alice, and Stella, and they have ever since been members of his family, and are under his control. Ho homestead had been declared during the lifetime of deceased. The petition of the widow for a homestead was filed August 2nd, 1877. Thomas W. Moore as administrator, and the said Fred W., Charles. Alice, and Stella, by their said guardian, — 442 — filed their objections to the granting of the prayer of the petitioner. The substantial point of the objection is, that, on the 2nd day of November, 1871, the petitioner executed a deed to said Fred W. and Charles Moore of her right, title, and interest in the real estate left by her said husband; and that although the deed was a quitclaim deed, executed before the commencement of administration, yet by it, in effect, she sold and conveyed all her interest of every description, at law and in equity, in and to all said real estate, including any right to have a homestead admeasured therefrom, and she is now es-topped from asserting any claim of any description to said real estate, or any part thereof, and ought not to be permitted to assert a claim of homestead. It was upon this point that the Court below denied her petition. We are of opinion that the Court below erred in refusing to admeasure and set apart a homestead. The deed of Mrs. Moore is silent upon the subject of homestead: whatever its effect as a conveyance, it was no more than to convey the interest in the property of the deceased, which she received upon his death, by succession. A homestead right, or a right to have a homestead, is not a right which vests under the law by succession. It is a right bestowed by the beneficence of the law of this State for the benefit of the family. Upon the death of an intestate, his property goes by succession to his heirs, subject to administration. The objects of administration are: 1st, to support the family for a period ; 2nd, to set apart a homestead to the family ; 3rd, to pay the expenses of administration ; 4th, to pay the debts of the deceased; 5th, to distribute the balance of the estate to those who take it by law. If an heir convey his interest in the estate, or any part thereof, he conveys such interest only as will remain to him after satisfying the first four objects above named, unless the deed should in terms expressly cover more. Setting apart a homestead is a part of the probate proceeding, as much as is a family allowance. Suppose there had been a guardian’s sale of the interest of any one of the minor children (not yielding enough for his or her support), could it be said that such sale would prevent the child from having a proper allowance? By no means. The sale would pass simply the right of the child by succession. In the case — 443 — at bar, the deed did not estop the widow from applying for an allowance, nor from applying for a homestead. The homestead, when set apart, is to be set apart for the benefit of the widow and children. Every minor child has an interest, and has a right to be named in the decree. The property set apart is to be for a home for them all, she, the widow, taking her place as the head of the family. It certainly could not be said that her deed, conveying her interest as successor, would interfere with and defeat the purpose of the law in giving the family an abiding-place. We have carefully examined the authorities cited by respondent, and do not find any reason to doubt the correctness of these views. The case of Bates v. Bates, 97 Mass. 392, is not parallel with this case as to its facts. There the widow had applied for and had obtained from the Probate Court admeasurement of her dower, which she conveyed, and then she applied to have a homestead set apart out of the same property. This the Court denied. That case would have been parallel with the case at bar if Mrs. Moore had first obtained partial distribution under our statute, had conveyed the property so distributed to her, and had then petitioned for a homestead out of the same property. We do not see that § 1485 of the Code of Civil Procedure applies to a homestead not declared during the life of both spouses. The right to a probate homestead, so called, is not the subject of sale. This Court has already held that the status of the widow at the time of the application must be considered, and if she, by subsequent marriage, has ceased to be the widow of the deceased, she cannot have a probate homestead set apart to her. If a testator devised his entire estate, his separate property, his widow would still be entitled to a homestead; but if she were to execute a deed of all her interest in the estate, her grantee could not have a homestead set apart to him. If she should, after the conveyance, die, or marry again, there would be no right of homestead to survive her or her widowhood. Before the action of the Probate Court, no estate has vested in the family, so far as homestead is concerned. It is merely a right to have the Court, as a part of the administration, set apart property; and not until such action can it be said that — 444 — any estate has become vested, either at law or in equity. The right to have a homestead set apart is no estate, either in law or in equity. As the Court said, in Bates v. Bates, 97 Mass. 395: “■ The estate of homestead is one of a peculiar nature. It is a provision by the humanity of the law for a residence for the owner and his family.” Judgment and order reversed, and cause remanded for further proceedings. Morrison, C. J., and Sharpstein, J., concurred. [Subsequently, the appeal was reheard in Bank, and the following opinion and judgment was rendered.] Myrick, J.: This is an appeal from an order denying the application of the widow of deceased that a homestead be set aside. The case was heard in Department Two of this Court, and its opinion was filed October 7th, 1880. Subsequently, an application that the case be heard by the Court in Bank was granted, and such hearing has been had. We are satisfied with the correctness of the opinion of the Department. The homestead to be set aside should be for the benefit of the widow and of such of the children of the deceased as shall be minors at the date of the order setting it aside. It seems to us immaterial that the petition of the widow was on behalf of herself alone. Her petition was sufficient to set the proceedings in motion, and the Court will, where there are minor children, see that their interests are protected. Referring to § 1485 of the Code of Civil Procedure, it may well be said that the language there used is quite clear if applied to a homestead declared in the lifetime of the spouses; but if an attempt be made to apply it to a probate homestead, the language is quite obscure, if not meaningless. “ Persons succeeding by purchase or otherwise to the interests, rights, and titles of successors to homesteads, or to the right to have homesteads set apart,” etc. Does that language embrace the idea, “ successors to the right to have homesteads set apart ? ” If so, there is no meaning in it; there is no such thing as an heirship — 445 — to have a probate homestead, though there may be heirship after the property has been set aside. Does the language embrace the idea, “ succeeding by purchase or otherwise to the interests of successors to homesteads ? ” If so, the words are equally meaningless; because, as stated in the opinion of the Department, nothing which is the subject of sale vests prior to" the setting apart. It is true there is a right to apply, and there is equal power in the Court to designate this or the other piece of land; no interest in any parcel of land vests until the action of the Court. In the case of a declared homestead, an instance can be put where those words would apply, viz.: A dies, leaving a widow, a homestead having been declared in his lifetime ; the widow thereupon has a title to the homestead, and the right to apply to have it admeasured and set apart to her; before doing so, she conveys the homestead property, or dies, leaving heirs ; in such case, her grantees or heirs (as the case may be) succeeding “ by purchase or otherwise ” to her homestead right, i, e., the property which came to her as survivor, may apply to have the homestead, or rather that which loas the homestead, but is no longer a homestead (having passed out of and beyond the scope of a homestead, and become property discharged of its former character), set apart to them out of, removed from the administration of, the estate of A, deceased. But an attempt to apply those words to a probate homestead would not readily find a solution. If a widow die before applying for a probate homestead, any right to apply which she might have had is gone; no person succeeds to that right; no adult child of hers can have a right; no minor child can have any right increased by her death; therefore there can be no such thing, under this statute, as successor to the right to have a probate homestead set apart. We are therefore of opinion that the section does not apply to the case before us. It might be said that, even if the Legislature intended that a right to apply for a probate homestead was the subject of bargain and sale, it was not intended that any less interest than the entire right could be acquired by a vendee'; for, if one of the parties entitled to apply—say the mother of minor children—could sell her right, and her grantee apply, such grantee would be entitled to the possession of the homestead as against the mother, and would — 446 — have a joint interest with the children, to the exclusion of the mother: which would be repugnant to the very idea of a homestead. It being the object of the Legislature to provide for a homestead, i. e., a place of home for the family, we cannot hold that the statute enacted for that purpose shall have the construction and effect of destroying the object in view. The judgment and order are reversed, and the cause is remanded for further proceedings. Morrison, C. J., Sharpstein, J., McKee, J., McKinstry, J., and Thornton, J., concurred. Ross, J., concurred in the judgment, upon the ground last stated in the opinion of Mr. Justice Myrick.