62. The homestead right is, in most states, an exemption to a debtor of a home free from liability for certain debts.
Homestead did not exist at common law, but is wholly a creation of statute, and is of comparatively recent origin.282 The homestead laws of the several states, while agreeing somewhat in their general nature and plan, differ very much in wording and detail. Nor is there much harmony in the interpretations which have been given by the various courts to similar provisions of the acts. Therefore, all that can be done is to give a general outline of the subject. In every case the reader must consult the statutes and decisions of his own state.
281 I stim. Am. St. Law, § 3202, B; 1 Shars. & B. Lead. Cas. Real Prop. Williams, Real Prop. (17th Ed. Am. note) 377; 1 Washb. Real Prop. (5th Ed.) 196, note 2. In three states the husband is endowed, curtesy being abolished. 1 Stim. Am. St. Law, § 3202 D. The community system is Incompatible with dower and curtesy. See 1 Stim. Am. St Law, §§ 6433, 3401-3404 For the constitutionality of laws changing the dower right, see Black, Const Law, 431.
282 Thomp. Homest. & Exenip. ▼.
63. The homestead exemption can in most states be claimed only by the head of a family, but in a few states any resident of the state is entitled to the exemption.
Most of the homestead acts provide for the exemption to one who is the head of a family, or use words of equivalent meaning.283 But in a few states all residents of the state are given the privilege, whether the head of a family or not.284 The best test to determine whether one claiming a homestead is the head of a family seems to be the existence of a moral duty to support dependent persons living with him.285 A husband and wife are such a family, though they have no children.286 When a husband owning a homestead dies, the right survives to the widow for her life,287
283 Thomp. Homest & Exemp. 39. Alienage does not exclude one from the benefit of homestead exemptions. Cobbs v. Coleman, 14 Tex. 594; People v. Mcclay, 2 Neb. 7; Dawley v. Ayers, 23 Cal. 108; Sproul v. Mccoy, 26 Ohio St. 577.
284 Thomp. Homest & Exemp. 52; Myers v. Ford, 22 Wis. 134; 1 Minn. St. at Large 1873, p. 630, § 165; Const. Ark. 1868, art. 12, § 3; Greenwood v. Mad-dox, 27 Ark. 649; Hesnard v. Plunkett (S. D.) 60 N. W. 159. And see Bank of Versailles v. Guthrey, 127 Mo. 189, 29 S. W. 1004.
285 Thomp. Homest. & Exemp. 46; Connaughton v. Sands, 32 Wis. 387; Wade v. Jones, 20 Mo. 75; Blackwell v. Broughton, 56 Ga. 390; Mcmurray v. Shuck, 6 Bush (Ky.) 1ll; Mullins v. Looke, 8 Tex. Civ. App. 138, 27 S. W. 926. But see Powers v. Sample, 72 Miss. 187, 16 South. 293. In some cases a legal duty to support has been made the test. Whalen v. Cadman, 11 Iowa, 226; Marsh v. Lazenby, 41 Ga. 153; Sanderlin v. Sanderlin's Adm'r, 1 Swan (Tenn.) 441. Instances are: A single man supporting his mother and dependent brothers and sisters, Marsh v. Lazenby, 41 Ga. 153; or dependent minor brothers and sisters, Greenwood v. Maddox, 27 Ark. 649; Mcmurray v. Shuck, 6 Bush (Ky.) 1ll; or widowed sister, with her dependent children, Wade v. Jones, 20 Mo. 75; a widower supporting his widowed daughter and her children, Black-well v. Broughton, 56 Ga. 390; or a grown-up daughter, Cox v. Stafford, 14 How. Prac. (N. Y.) 519; single woman supporting her illegitimate child, Ellis v. White, 47 Cal. 73.
286 Kitchell v. Burgwln, 21 111. 40; Wilson v. Cochran, 31 Tex. 680.
287 Thomp. Homest. & Exemp. 454; Fleetwood v. Lord, 87 Ga. 592, 13 S. E. 674; Fore v. Fore, 2 N. D. 260, 50 N. W. 712. But see Gowan v. Fountain, 50
Beal Prop.-8 though in some states she loses the homestead by a subsequent marriage.288 On the other hand, where the wife was the owner of the homestead, the surviving husband is in some states entitled to a continuation of the exemption, although there are no minor children.289 And a husband does not lose his homestead when his wife withdraws from the family under a decree of divorce.290 But in several states it is held that a widow who is a nonresident is not entitled to the homestead.291 Children, during the life of the parent who owns the homestead property, have no rights against such parent.292 But, against a surviving parent who does not own the property, they have,293 and in most states the minor children are entitled, after the death of both parents, to the homestead during their minority.294
Minn. 264, 52 N. W. 862; White's Adm'r v. White, 63 Vt. 577, 22 Atl. 602. But not in Georgia, unless there are minor children. Kidd v. Lesler, 46 Ga. 231. Some cases hold that the widow must elect between her dower and homestead, Butterfield v. Wicks, 44 Iowa, 310; or between her distributive share and homestead. Egbert v. Egbert, 85 Iowa, 525, 52 N. W. 478. And she may be compelled to choose between homestead and a devise, in a will which clearly requires such election. Meech v. Meech, 37 Vt. 414. And see Cowdrey v. Hitchcock, 103 111. 262.
288 Del v. Habel, 41 Mich. 88, 1 N. W. 964. And see Craddock v. Edwards, 81 Tex. 609, 17 S. W. 228. Contra, Fore v. Fore, 2 N. D. 260, 50 N. W. 712.
289 In re Lamb's Estate, 95 Cal. 397, 30 Pac. 568; Stults v. Sale, 92 Ky. 5, 17 S. W. 148; Roberts v. Greer (Nev.) 40 Pac. 6.
290 Doyle v. Coburn, 6 Allen (Mass.) 71; Hall v. Fields, 81 Tex. 553,17 S. W. 82. But see Arp v. Jacobs, 3 Wyo. 489, 27 Pac. 800. See, however, Cooper v. Cooper, 24 Ohio St 489. Where the wife withdraws from the family, she loses her homestead right, if her withdrawal was not justified, Trawick v. Harris, 8 Tex. 312; Cockrell v. Curtis, 83 Tex. 105, 18 S. W. 436; but not when the husband's conduct has forced her to withdraw, Meader v. Place, 43 N. H. 307; Atkinson v. Atkinson, 40 N. H. 249; Curtis v. Cockrell (Tex. Civ. App.) 28 S. W. 129. A divorced wife cannot claim her "widow's exemption." Dob-son's Adm'r v. Butler's Adm'r, 17 Mo. 87. But see Alexander v. Alexander. 52 111. App. 195.