Judge of Probate v. Simonds

Perley, C. J. In Norris v. Moulton, 34 N. H. 392, it was decided that the judge of probate is authorized to assign the AvidoAv’s homestead under the provision of the statute, which gives him jurisdiction to cause the doAver and share of the widow, and the shares of any or all of the heirs or devisees in the real estate of any person deceased to be divided and assigned to them in severalty. Rev. Stat. ch. 167, sec. 1. The assignment of homestead in this case appears to have been duly made under the statute. Paige, the creditor, being interested in the question, might have objected in the probate court to this assignment, and might have appealed from an adverse decree of that court. Rev. Stat. ch. 170, sec. 1. He might have insisted that no assignment of homestead should be made till his debt Avas paid. Perrin v. Sargeant, 33 Vt. 84. This, we think, is the course Avhich he should have pursued if he intended to enforce his claim against the widoAv’s right to the assignment of her homestead. The time and place to assert his claim against her right Avas in the probate court when the judge was proceeding under the statute to assign the Avidow her shares of doAver and homestead. There is another difficulty ivith the plaintiff’s case. The administrator’s sale passed the title in the land sold subject to the Avidow’s right of homestead. The plaintiff’s case goes upon a concession that the' sale Avas valid and passed to the purchaser Avhat she bought. It cannot affect the legal question that the widoAV in this case happened to be the purchaser. The purchaser under such a sale takes the whole title in the land sold, except the widow’s right of homestead. Paige’s complaint is that the administrator has not sold for her benefit the AvidoAv’s interest in the land assigned for her homestead. But her interest Avas a mere personal right to occupy during her life. It was no estate that she could transfer to another; and an attempt at sale of that right by the administrator Avould not change the nature of her interest so as to make it an estate in the purchaser at the administrator’s sale. The purchaser at an administrator’s sale of land subject to a homestead right of the AvidoAV, when she ceased to occupy in person, Avould hold the land discharged- of her right. There Avas, therefore, no interest in the land that the administrator could sell. Gunnison Twitchell, 38 N. H. 62; Bennett v. Cutler, 44 N. H. 69. Judgment for the defendant