Russ v. Henry's Estate

The opinion of the court was delivered by Ross, J. This is a petition by Elvira M. Russ, now the wife of the co-petitioner, formerly the wife.of the intestate, Edwin F. Henry, to have a homestead set out to her in certain real estate, of which at one time Edwin F. Henry was part owner. From the facts found by the County Court it appears, that Edwin F. Henry was grandson and sole heir of Thomas Lull; Lull deceased in July, 1884. At that time, and for several years previously, Thomas Lull and his wife, and Edwin F. Henry and his wife and children, were in the occupancy of the farm in which the homestead asked to be set out, is claimed to exist. The title to the farm was in Thomas Lull. It did not appear under what right, or arrangement Edwin F. Henry and his family were occupying the farm, in connection with Thomas Lull and wife, before and at the time of the death of Thomas Lull. On the death of Thomas Lull, the farm became the 'property of his widow, and the grandson, Edwin F. Henry. Yery soon after the death of Thomas Lull, August 3, 1884, the widow of Thomas Lull, and Edwin F. Henry, joined in a deed conveying in terms, the entire farm. The then wife of Edwin F. Henry, now the petitioning wife, did not join in that conveyance. She now claims, that at the time of that conveyance, Edwin F. Henry had a homestead right in the premises, which could not be conveyed by his sole deed. Edwin F. Henry having deceased while occupying the farm, under some arrangement she asks to have her homestead set out to her. Under the present law, to have a homestead exist in premises owned by the husband, the premises, or some part of them, must be tosed or kept as a homestead by such husband, or head of a family. Sec. 1894, R. L. West River Bank v. Gale, 42 Vt. 27; Whiteman v. Field, 53 Vt. 554. Whether Edwin F. Henry used or kept'the premises in [392] contention, as a homestead, between the time of the death of Thomas Lull and his deed of August 3, 1864, was a question of fact to be determined by the County Court, the issue having been joined to the court.. It is incumbent upon the petitioner claiming the homestead, to establish the fact, that Edwin F. Henry during the interval between the decease of Thomas Lull and his deed, did use or keep the premises, or a part of them as a homestead. For, if Edwin F. Henry at the time of his deed, August 3, 1864, had no homestead in the premises, his sole deed of that date conveyed his entire interest therein, and no homestead right therein has descended to, and at his decease, become vested in the petitioner. The County Court has found the fact in 'regard to Edwin F. Henry’s keeping or using the real estate in contention as a homestead, after the death of Thomas Lull, and before the deed of August 3, 1864, against the petitioner. This finding is conclusive against her right to have a homestead set out from any portion of such real estate. The judgment of the County Court dismissing the petition is affirmed, and the judgment ordered to be certified to the Probate Court.