Saylor v. . Powell

90 N.C. 202

• Court: Supreme Court of North Carolina
• Decided: February 5, 1884
• Status: Published

Opinion

Ashe, J.

The only question presented for the determination of this court is, whether the defendants, or either of them, are entitled to a homestead in the house and lot.

The claim set up by the widow for a homestead is decided in the case of Wharton v. Leggett, 80 N. C., 169, where it is held that, under article ten, section live of the constitution, a widow is not entitled to a homestead in the lands of her husband, if he die leaving children — minors or adults.

And the defendant B. F. Powell is not entitled to a homestead, either under the constitution or under the act of 1877, ch. 253. It is alleged in the complaint that he was twenty-one years old, which is not denied. So that even if he was a minor when his father died, and he was then entitled to a homestead, the right ceased as soon as ho attained his majority. Const., Art. X, §3. Nor is he entitled to it by virtue of the act of 1877, for that act has been declared to be in violation of the constitution of the state. Wharton v. Taylor, 88 N. C., 230.

There is no error. Let this be certified, that the case may be proceeded with in accordance with this opinion and the law.

No error. Affirmed.