Ratcliff v. Davis

Rothrock, Ch. J. It is not necessary to set out all of the grounds of the demurrer. Oue of them is to the effect that it is not within the power of the guardian to waive the homestead rights of his ward. Mrs. Davis should be regarded as merely temporarily absent from her homestead. And, besides, it is questionable whether she should be regarded as absent. It1 appears from the petition that some of the children are occupying the homestead. But, even if she should never return to her family,her distributive share is required bylaw to be set off so as to include the homestead, “unless she prefers a different arrangement.” Code, § 2441. It is claimed by her guardian that, because she is incapable of making her wishes known, his preference shall be sub [469] stituted for hers, and that he can waive the statutory provissions. We do not think he has any power to do so, because, as it appears to us, the right is a personal one, and, if not exercised for any reason, even though it be her incapacity to do so, no other person can act in that behalf in her stead. It does not even appear from the averments of the petition, that it would be to her interest, or to the interest of her children, that the homestead should be waived. It seems that the object is to subject'her share in the estate to the payment of a debt. The policy of our law is, that homesteads shall not he liable for debts contracted after the acquisition of the homestead, unless, upon contract expressly so pro viding. It seems to us that the guardian is seeking by this proceeding to appropriate the homestead to the payment of a debt against his ward. We think he ought not be permitted to do so. Reversed.