True v. Estate of Morrill

28 Vt. 672

• Court: Supreme Court of Vermont
• Decided: March 15, 1856
• Status: Published

Opinion

The opinion of the Court was delivered by

Bennett, J.

It has been settled by this court, in a case in Eutland county, that causes of this description come within the general provisions of the probate law allowing appeals from the decisions of the court of probate.

The more important inquiry in the case is in regard to the character of the property set out to the widow. Was it of the character, and so occupied by the husband at the time of his decease, as to bring the case within the provisions of the first section of the homestead act ? This section defines a homestead as consisting “ of a dwelling house, out-buildings, and lands appurtenant, occupied as a homestead by a housekeeper or the head of a family,” and the fourth section provides that upon the death of such housekeeper or head of a family, leaving a widow, his homestead shall pass to his widow and children, if any there be, in due course of descent. The object of the law creating a homestead which should not be subject to the debts of the husband, is of a humane character, and should be held to apply fairly to all such cases as are within the equity and spirit of the act, but, beyond this, we should not go. It seems the deceased was a man in good circumstances, leaving an estate of some five thousand dollars above all his debts, being mostly in notes and personal property. The farm which the deceased had for a long time owned and occupied, in the vicinity of the pieces of land set out to the widow, had been sold more than two years before his death, and, at the time of his death, he was not keeping house, but had been boarding, for some six months, in the family of a Mr. Richardson, some little distance from any of the land set out to the widow. Although the case finds that after the sale of the farm the deceased continued to live in. a part of the house up to the time he and his family went to board with Richardson, yet his occupancy must have been in the character of a tenant during that time. This farm, no doubt, at the time of its sale, was occupied by the deceased as a homestead, but we think this cannot be said of any of the pieces of land set out to the widow. The first piece, consisting of some ten or twelve acres, had been occupied by a tenant, and upon which the deceased had never resided. Where the statute speaks of a housekeeper, or the head of a family, occupying a place as a homestead, it no doubt refers to a personal occupation, arid not by a tenant. The woodland, though it may have been occupied by the deceased, previous to his death, for the purpose of taking timber and fire-wood from it for his own use, yet it would be an abuse of language to call it his homestead. So it may be said of the small piece upon which there was a shop, in which the deceased had stored some of his furniture, and in which he had some tools, and occasionnally did some work. There is no pretence that he or his family occupied it in any other way. It was no homestead, not any more so, than the pew in the meeting house occupied by the deceased and his family when they went to church.

We think, then, the judgment of the county court, reversing the decree of the court of probate should be affirmed with costs.