In re Estate of Wixom

By the Court, Sanderson, J.: As they now read, there is some inconsistency between the provisions of the Probate Act and those of the Homestead Act, in relation to the disposition of the homestead upon the death of the husband. Both Acts were first passed in 1851, and, in the respect named, they were then consistent with each other. By the tenth section of the Homestead Act, it was made the duty of the Probate Court, “upon the death of the head of the family,” to set apart the homestead “for the benefit of the surviving wife and his own legitimate children.” (Stats. 1851, p. 298, Sec. 10.) By the one hundred and twenty-first section of the Probate Act it was provided “that all property by law exempt from execution” should be set apart by the Probate Court “for the use of the widow or minor child or children,” (Stats. 1851, p. 463, Sec. 121,) which, of course, included the homestead, if at the time exempt by law; if not, it was still further provided, in section one hundred and twenty-four, that a homestead, of the quantity and value therein described, should be set apart. By the one hundred and twenty-fifth section it was provided that all property so set apart “for the use of the family” should be the property of the widow, if the deceased left a widow and no minor child; if a widow and minor child, one half should belong to each; if more than one child, one half to the widow and the other to the children in equal shares; if no widow, the whole to the minor child or children. Thus it is apparent that, from the first, the Probate Act was [324]intended to operate in aid of the Homestead Act, and not in opposition to it—to follow, and not lead.

Since then changes have, from time to time, been made in both Acts. Each has been amended without much regard to the cognate provisions of the other. Hpon the particular point under consideration the Probate Act remains substanstially as.it was first enacted. The one hundred and twenty-first section has been amended in other particulars, but still provides that the homestead shall be set apart “for the use of the family,” (Stats. 1865-6, p. 851,) but the one hundred and twenty-fifth section remains as at first. A radical change, however, has been made in the Homestead Act, which now provides that, upon the death of either husband or wife, the homestead property shall vest absolutely in the survivor, subject only to such debts or liabilities as were a legal charge upon it at the time of the death of such husband or wife. This change was made in 1862. (Stats. 1862, p. 519.) To have maintained entire consistency, the one hundred and twenty-first and one hundred and twenty-fifth sections of the Probate Act should also have been amended in like manner. The one hundred and twenty-fifth section of the Probate Act, however, so far as it is repugnant to the amendment to the Homestead Act of 1862, must yield to the latter, the latter being the last will of the Legislature.