Atkinson v. Atkinson

Fowler, «T.

Most of the questions arising in this case have already and quite recently been considered, and distinctly determined by this court.

The allegations of the petition being regarded as admitted, for the purposes of the motion to dismiss, it appears that the petitioner’s husband, for more than twenty years after their intermarriage, and more than three years after the homestead act took effect, owned and occupied as his family home the farm in which the petitioner now claims and asks to have assigned to her a homestead, as the same is secured to her by the provisions of that act. The petitionee holds the premises, and resists her claim and petition, by virtue of a deed of that farm to himself, made and executed by the husband alone, without the cooperation of his wife. Such a deed could only convey the property to the petitionee, subject to the inchoate right of homestead, as it existed in the husband and wife during his life, and in his widow and minor children, if any, after his decease. Upon the death of the husband, after this conveyance, the widow became entitled to demand from, and to have assigned to her, by the tenant of the premises, a homestead of the value of $500, to hold to her own use as a conditional estate for life; its continuance depending upon her continuing to occupy it as a homestead. Gunnison v. Twitchel & als., Sullivan, Jan. T., 1859; Fletcher v. State Capital Bank, ante, 369; Norris v. Moulton, 34 34 N. H. 392.

The rights of the petitioner were in no way impaired by the circumstance that she was compelled by ill treatment to abandon her husband and sue for a divorce. They are legally in no respect different from what they would have been had her husband conveyed the property, as he did, while their cohabitation continued, and they had subsequently removed together from the premises, and he had afterwards died. 'While he lived she continued his wife, notwithstanding the separation, and upon his death she *437 became bis widow, and as such as fully and completely entitled to all her just rights as though she had been properly and kindly treated by him while living.

Nor can we see -any sufficient objection to the present form of proceeding by the widow. Although the homestead right is not technically an estate in the land, but only an inchoate right thereto, we think that, after the death of the husband, the widow may be properly regarded as having or holding such an interest in the property in which her right of homestead exists; that she may rightfully proceed to perfect that right, and have her interest set out to her in the mode prescribed by the 206th chapter of the Revised Statutes. While she could undoubtedly maintain a bill in equity to secure an assignment to herself of her share in the premises, we are of opinion that she may also resort to the simpler and more familiar mode of obtaining partition, by a petition therefor to this court.

As, in our judgment, under the circumstances stated in her petition, the petitioner is entitled to a homestead in the premises therein described, of the value prescribed by the statute, and the present proceeding is a proper one whereby to obtain an assignment thereof to her separate use in severally, the motion to dismiss must be denied.

Motion to dismiss denied.