Weaver v. Low

Elliott, J. The appellant, as guardian of the infant children of Henry H. Low, deceased, sued Elizabeth Low, [58] the widow of said decedent. The court sustained a demurrer to the complaint, and rendered final judgment for costs against the plaintiff. The correctness of the ruling, in sustaining the demurrer, is the only question presented in the record. The facts presented by the complaint are, in substance, as follows: Henny H. Low died in the summer of 1866, leaving the defendant his widow, by whom the decedent had no children, but leaving children (the plaintiff’s wards) by a previous marriage. At the time of his death, said Henry H was seized in fee of one hundred acres of land, of which about forty acres were cleared and in cultivation, and on which, wé infer from-the complaint, he resided at the time of his death. After his death, the defendant, as his widow, continued in possession of the residence, including said cultivated land, and received the rents, use and profits thereof, for the period of one year. The defendant also became the administratrix of the estate of her deceased husband. At the expiration of about one month after the death of said Henry H, the plaintiff was duly appointed guardian of the three infant children, and immediately thereafter, by the consent of the defendant, took them away from the defendant, and has since had them in his own possession and keeping. He brings this suit to recover, for the use of his wards, two-thirds of the- rental value of said real estate for the period of a year next succeeding the death of said Henry H.y which he alleges to be of the value of one hundred and twenty-five dollars. Do these facts constitute a valid cause of action ? It is declared by statute that “ a surviving wife and minor children shall, in all cases, be allowed to remain in the ordinary dwelling house of the family, and to occupy the same and the messuage thereunto appertaining, and fields adjacent, if any, not exceeding forty acres, free of rent, for one year from the death of her husband.” 1 G. & II., § 28, p. 297. ■The object in the enactment of this provision evidently was .to secure to the widow of a deceased husband, and such of [59] the minor children as should constitute members of the family, a temporary home and means of support, by allowing them, as a family, to remain 'in and occupy the dwelling house and messuage, and adjacent fields, not, however, exceeding forty acres, free of rent, for the period of a year next succeeding the death of the husband. • The widow is the recipient of the.bounty as the remaining head of the family, but it is to he used for the common benefit of all constituting such family; that is, for herself and the minor children, so long as they continue to live with her. Here the guardian removed the children from the custody of the widow, after which they were no longer members of the family; they ceased to be occupants of the homestead, and have no claim to share in the benefits of the premises thus given to the widow free of rent. J. W. Evans, for appellant. D. Moss, for appellee. We think the court did right in sustaining the demurrer, and the judgment must therefore be affirmed. The judgment is affirmed, with costs.