Cowdrey v. Cowdrey

Morton, J. Jonas Cowdrey, the husband of the petitioner, acquired an estate of homestead under the St. of 1855, c. 238, which was not lost by the enactment of the St. of 1857, c. 298, as that statute contained a clause saving any rights acquired under the previous statutes. The Gen. Sts. c. 104, § 3, provide that “all existing estates or rights of homestead which'have been acquired under any law heretofore in force, shall continue to be held and enjoyed notwithstanding the repeal of such law.” The effect of this provision was that Jonas Cowdrey continued [188] after its passage to hold and enjoy the estate of homestead previously acquired by him, with the same rights and incidents as if it had been acquired under the General Statutes. The Gen. Sts. e. 104, § 12, provide that “ the estate or right of homestead of any householder, existing at his death, shall continue for the benefit of his widow and minor children, and be held and enjoyed by them, if some one of them occupies the premises, until the youngest child is twenty-one years of age, and until the marriage or death of the widow, and shall upon the death of such householder be limited to that period. But all the right, title and interest of the deceased in the premises in which such estate or right exists, except the estate of homestead thus continued, shall be subject to the laws relating to devise, descent, dower and sale for payment of debts against the estate of the deceased.” This includes all rights of homestead of any householder existing at his death, and applies to rights of homestead acquired under previous laws and continued by the General Statutes, as well as to rights acquired under the General Statutes. The case of the petitioner is within the letter and the spirit of this provision, and it is clear that under it the estate or right of homestead of her husband existing at his death continued for her benefit. The effect of the homestead statutes is to give to the widow an estate in addition to her other rights in the property of her deceased husband. They were not designed to curtail her right of dower, but to give her the additional benefit of a homestead for herself and minor children. Upon this ground, it was held in Monk v. Capen, 5 Allen, 146, that the fact that a widow had received an assignment of dower and an allowance out of the personal property of her husband did not preclude her from claiming the additional benefit of an estate of homestead. The same point was decided in Mercier v. Chace, 11 Allen, 194. These cases were decided under the Sts. of 1855 and 1857, but it is clear that, in the revision of these laws in the General Statutes, it was not intended to curtail the widow’s rights of dower. The last clause of § 12, above cited, upon which the appellant relies, does not in express terms or by reasonable implication provide that the homestead shall not be subject to dower. Its probable purpose was to make certain what might [189] otherwise be open to question, by providing that, in cases where the actual homestead is of greater value than $800, to which amount the continuing estate in favor of the widow is limited, all the interest of the deceased over and above the homestead estate should remain subject to the laws as before. We are therefore of opinion that the commissioners appointed by the Probate Court were right in assigning the petitioner her dower out of the whole estate, and afterwards setting off her estate of homestead. The result is that in each case the decree of the Probate Court must be Affirmed.