In re the Estate of Phelan

By the Court, Paine, J. It seems clear that the premises sought to be sold, were not the homestead of the deceased. He moved from them in 1854 and never resided on them after-wards, but rented them to several tenants. We do not intend to say that even previous to the law of 1858, a departure from the homestead for temporary purposes would have forfeited the [79] exemption. A man might have desired to have been absent from his home for a season, traveling with his family at the east or even visiting the old world, and it might well be said that the right of exemption would still remain, and thus, even though during such temporary absence he should allow the premises to be occupied by a tenant for hire. Such an abandonment and occupancy by another would not be inconsistent with the fact that the premises were the real and only homestead of the absent family. But where the owner of a house and lot voluntarily removes from it and takes up another residence in the same town, not from any temporary necessity, for the purpose of repairing the homestead or otherwise, but with a view to the more convenient transaction of business elsewhere, renting the old home to other parties, it can no longer be said to be Ms homestead, and a vague intention to return perhaps at some future time and reside there again, would not make it such. For in the meantime, his residence, his home would be at his new abode. If this were not so, a man might rent his home here, remove with his family to California, take up a new residence there with a view to enter into business there and acquire a fortune, and yet retain his exemption here, provided he intended to return here and reside at some future time. Such kinds of absence ás are not inconsistent with the fact that the premises still remain the residence of the owner, would not forfeit the exemption. But where the residence was actually changed and the old home rented for hire, the exemption ceased, because the homestead ceased. This would have been the' law prior to the act of 1858, even assuming an intention to return at some future time on the part of the owner, though the weight of the evidence presented on this application negatives any such intention in this case. It follows that the premises in question ceased to be the homestead of the deceased in 1854, and never were such after-wards. The act of 1858 was therefore inapplicable. That [80] act provided that the owner of a homestead under the laws of this state might remove therefrom, and such removal should not render the property liable to forced sale on execution. B. S. 1858, p. 798. Had this property been a homestead when that act was passed, the qu( stion presented would have been one of more difficulty. Whether that statute was intended to allow the debtor to remove from his homestead and rent'it to a tenant, and actually take a new residence elsewkdre and still retain his exemption, is a question which when it arises, will deserve serious consideration. The act was undoubtedly passed to change the law as it was established in Hoyt vs. Howe, 3 Wis., 753. But that was a case of alienation of the homestead and a change of the rule held in that case, so far as related to alienation, was perhaps necessary to fully accomplish the object of the exemption. But the act not only provides for that, but also that a removal from the homestead shall not render it liable to forced sale. The effect of this provision in a case where it is applicable, may not be clear, but as it is not applicable here, we are relieved from the necessity of determining it. The judgment is affirmed, with costs.