Foster v. Leland

Holmes, J. The demandant left the premises voluntarily with her husband at the end of the year 1854, and went to Worcester with no intention of returning to Holliston. Her husband died on January 6, 1868, and she appears to have made no claim and no attempt to occupy the premises up to the date of the writ, August 2, 1884. The homestead exemption created by the act of 1851 is continued after the householder’s death for the benefit of his widow and family only in case of “ some one of them continuing to occupy such homestead.” St. 1851, e. 340, § 2. It is settled that, if the demandant had left as she did, after her husband’s death, her right of possession would- have been lost. Paul v. Paul, 136 Mass. 286. Abbott v. Abbott, 97 Mass. 136. Brettun v. Fox, 100 Mass. 234, 235. We are of opinion that no sufficient distinction can be found in the fact that she left in her husband’s lifetime, as she left voluntarily, and has remained away voluntarily for years after his death. She has not satisfied the condition attached to the provision in her favor. It is unnecessary to consider the other questions which have been argued, or whether the ease might not stand differently if .the demandant had been driven from the premises by her husband, and after his death had been kept out by the tenant. Judgment for the tenant affirmed.