13. Norton v. Norton, 94 Ala. 481, 10 So. 436; Sansom v. Harrell, 55 Ark. 572, 18 S. W. 1047; Whittle v. Samuels, 54 Ga. 548; Showers v. Robinson, 43 Mich. 502, 5 N W. 988; Abbott v. Abbott, 97 Mass. 137.

14. Tartt v. Negus 127 Ala. 301, 28 So. 713; Dickey v. Gibson, 113 Cal. 26, 54 Am. St. Rep. 321, 45 Pac. 15; Plummer v. White 101 111. 474; Dayton v. Donart, 22 Kan-26; Weatherford v. King, 119 Mo. 51, 24 S. W. 772; Nebraska Loan & Trust Co. v. Smasaall, 38 Neb 516, 57 N. W. 167; Lake v. Page, 63 N. H. 318, 1 Atl. 113; Green v. Crow, 17 Tex. 180. In Illinois it cannot be aliened by her before it has been set out to

- Loss of rights. Under some statutes, it is necessary that the widow occupy the homestead premises, and the right is lost by a failure so to do.15 But, even under such statutes, the occupancy need not always be personal, possession by a tenant being sometimes regarded as sufficient.16 Other statutes contain no requirement of occupancy.17 Even though a permanent abandonment of the homestead property would defeat the right, a mere temporary absence will not usually have that effect.18

The homestead right of the surviving wife is in some, though not all, jurisdictions, lost by her remarriage.19 her after her husband's death. Sloniger v. Sloniger, 161 111. 270, 43 N. E. 1111; Contra in Missouri, Weatherford v. King, 119 Mo. 51, 24 S. W. 772.

15. Norton v. Norton, 94 Ala. 481, 10 So. 436; Garibaldi v. Jones, 48 Ark. 230, 2 S. W. 844; Farnan v. Borders 119 111. 228, 10 N E. 550; Peebles - Bunting, 103 Iowa, 489, 73 N. E. 882; Barbe v. Hyatt, 50 Kan. 86; Abbott v. Abbott, 97 Mass. 136; Fore v. Fore's Estate, 2 N. D. 260; Hicks v. Pepper, 1 Baxt. (Tenn.) 42.

16 Garibaldi v. Jones, 48 Ark. 230; Walters v. People 21 111. 178; Phipps v. Acton, 12 Bush (K.) 377; Rockwood v. St. John, 1G Okla. 476, 62 Pac. 277. See Shirack v. Shirack, 44 Kan. 653.

17. Garland v. Bostick, 118 Ala. 209, 23 So. 698; Holbrook v. Wightman, 31 Minn. 168, 17 N. W. 280; Brown v. Brown 33 Miss. 39; Hufschmidt v. Gross, 112 Mo. 649, 20 S. W. 679; Durland v. Seiler. 27 Neb. 33, 42 N. W 741; Lake v.

Page, 63 N. H. 318, 1 Atl. 113.

18. Brokaw v. Ogle, 170 111. 115, 48 N. E. 394; Jones v. Blu-menstein. 77 Iowa, 361, 42 N. W. 321; Zwick v Johns, 89 Iowa, 550, 56 N. W. 665; William Deer-ing & Co. v. Beard, 48 Kan. 16;

Pratt v. Pratt, 161 Mass. 276, 37 N. E. 373; Carter v. Randolph. 47 Tex. 376. Compare Kingman v. Higgins, 100 111. 319; Carter v. Randolph, 47 Tex. 376; Paul v. Paul, 136 Mass. 286.

19. That the right is lost by remarriage, see In re Boland's Estate, 43 Cal. 640; Heard v. Downer, 47 Ga. C29; Dayton v. Donart, 22 Kan. 256; Dei v. Habel, 41 Mich. 88; Carpenter v. Brown-lee, 38 Miss. 200; Anderson v. Coburn, 27 Wis. 558. Contra. Yeates v. Briggs, 95 111. 79; Nicholas v. Parczell, 21 Iowa, 265, 89 Am. Dec. 572; Brady v. Banta, 46 Kan. 131, 26 Pac. 441; West v. M-cMullen, 112 Mo. 405, 20 S. W. 628; Miles v. Miles, 46 N. H. 261, 88 Am. Dec. 208; Fore

Occasionally it.has been decided that the widow's right of homestead cannot be barred by an antenuptial contract.20 It is, however, lost by her joinder in or consent to her husband's conveyance in the mode provided by statute,21 and she may release her right after her husband's death.22

The widow's right cannot generally be defeated by her husband's devise of the homestead property to another person.23 In case, however, the husband, by his will, makes a provision for his wife in lieu of her homestead right, she must, as in the case of dower, ordinarily make an election as to which she will take.24

In some jurisdictions, the widow is not entitled both to dower and to her homestead interest, but she must elect as to which she will take,25 or the amount of v. Fore's Estate, 2 N. D. 260; Pressley's Heirs v. Robinson, 57 Tex. 453.

20. McMahill v. McMahill. 105 111. 596, 44 Am. Rep. 819; Mann v. Mann's Etate, 53 Vt. 48. See

Waples, Homesteads, 612. Contra Hafer v. Hafer, 36 Kan. 524, 13 Pac. 821; Ditson v. Ditson 85 Iowa, 276. 52 N. W. 203; and see Camp v. Smith, 61 Ga. 440.

21. See ante, Sec. 248.

22. Small v. Wicks, 82 Iowa, 744, 47 N. W. 1031; Mack v. Heiss, 90 Mo, 578, 3 S. W. 80; Sloniger v. Sloniger, 161 111. 270, 43 N. E. 1111; Showers v. Robinson. 43 Mich. 502, 5 N. W. 988.

23. Bell v. Bell, 84 Ala. 64, 4 So. 189; In re Lahiffs Estate. 86 Cal. 151, 24 Pac. 850; Stewart v. Brand, 23 Iowa, 477; Pratt v. Pratt, 161 Mass. 276, 37 N. E. 435; Holbrook v. Wightman, 31 Minn. 168, 17 N. W. 280; Kleimann v. Gieselmann, 114 Mo. 437. 35 Am.

St. Rep. 761, 21 S. W. 796; Run-nells v. runnels, 27 Tex. 515; Meech v. Meech's Estate, 37 V 414. Contra, Turner v. Scheiber, 89 Wis. 1, 61 N. W. 280; Osborn v. Sims, 62 Miss. 42s. And see Hazelett v. Farthing, 94 Ky. 421, 42 Am. St. Rep. 365, 22 S. W. 646.

24. Etcheborne v. Auzerais, 45 Cal. 121; Cowdrcy v. Hitchcock, 103 111. 262; Jarboe v. Hayden, 133 Ky. 378. 117 S. W. 961; Steepler v. Silberberg, 220 Mo. 258, 119

S. W. 418; McCormick v. McNeel, 53 Tex. 15; In re Blackmer's Estate, 66 Vt. 46, 28 Atl. 419; Contra, Chamness v. Parrish, 118 Tenn. 739, 103 S. W. 822.

25. Brokaw v. McDougall, 20 Fla. 212; Cook v. Cook, 138 Ga. 88, 74 S. E 795; Walker v. Doane, 108 111. 236; Whitehead v. Conk-lin, 48 Iowa, 478; Phillips v. Williams, 130 Ky. 773, 113 S. W. 908;

Waples. Homesteads 618. In Iowa, the surviving widow or husband is required to make an election her homestead is to be deducted in assigning her dower.26 In other states, however, she is entitled to both dower and homestead, free from any deductions.27

- Termination of right. After the termination of the widow's interest, if there are no minor children to assert the right of exemption,28 the land may be made liable for the husband's debts.29 Under some decisions, even during the existence of the widow's interest, the land may be sold for the payment of these debts, subject to such interest.30

- Probate homestead. As before stated, in many states the widow is entitled to what is termed a homestead interest in her husband's property, even when he had asserted no claim of homestead during his life, this being conveniently termed a "probate" homestead. Such homestead is allotted by a court, usually, if not always, of either equity or probate jurisdiction, much as in the case of the assignment of dower.31 between her or his distributive share and the homestead interest. Conn v. Conn, 58 Iowa, 747, 13 N. W. 51; Holbrook v. Perry, 60 Iowa, 286, 23 N. W. 671.

26. Doane v. Doane's Heirs, 33 Vt. 649; Seek v. Haynes, 68 Mo. 13; Glover v. Hill, 57 Miss. 240; Jones v. Gilbert, 135 111. 27, 25 N. E. 566.

27. Horton v. Hillrard, 58 Ark. 298, 24 S. W. 242; Chisolm v. Chisolm's Ex'rs, 41 Ala. 327; Cowdrey v. Cowdrey, 131 Mass. 186; Dei v. Habel, 41 Mich. 88, 1 N W. 964; Morris v. Morrison, 45 M. H. 490; Hosford v. Wynn, 22 S. C. 309.

28. See Post, Sec. 250.

29. Miller v. Marx, 55 Ala. 322. Garibaldi v. Jones, 48 Ark. 230.

2 S .W. 844; Barrett v. Durham, 80 Ga. 336, 5 S. E. 102; Gardner v. Baker, 25 Iowa, 343; Morrill v. Hopkins, 36 Tex. 686; Han-by's Adm'r v. Henritze's Adm'r, 85 Va. 177, 7 S. E. 204

30. Evans v. Evans' Adm'r, 13 Bush (Ky.) 587; McGowan v. Baldwin, 46 Minn. 477, 49 N W. 251; Poland v. Vesper, 67 Mo. 727; Carrigan v. Rowell, 96 Tenn. 185, 34 S. W. 4. Contra, Wehrle v. Wehrie, 39 Ohio St. 365. See Showers v. Robinson, 43 Mien. 562, 5 N. W. 983.

31. Keel v. Larkin, 72 Ala. 493; Barco v. Fennell, 24 Fla. 378, 15 So. 9; Mercier v. Chace, 9 Alles (Mass.) 242; Ring v. Burt, 17 Mich. 465, 97 Am. Dec. 200; At kin-ron v. Atkinson, 40 N. H. 249;

Real Property.

[Sec. 250

The allotment must be made out of land in which the husband had a beneficial interest not expiring on his death.32 It has accordingly been allowed out of land which he held as tenant in common of another,33 out of an equitable interest under an uncompleted contract of purchase,34 and out of an equity of redemption,35 and has been denied in an estate in remainder,36 and in a bare legal estate in the husband.37

Some statutes require that the allotment be out of the residence property of the husband, if any such there be,38 and sometimes there is no right of homestead except in such property.39 In some states, the widow has no such rights in land in which the husband did not claim an exemption.40