In re Estate of Moore

Myrick, J.: This is an appeal from an order denying the application of the widow of deceased that a homestead be set aside to her out of the separate property of her late husband. The deceased died October 30th, 1871, leaving the petitioner his widow, and four minor children by a former marriage, to wit: Fred W., Alice, Charles, and Stella. A son, William II., was born after the death of the intestate. On the 4th of March, 1872, letters of administration were issued to Thomas W. Moore, a brother of deceased, and the estate is still in process of administration. Since the death of intestate, the widow continued to reside on the premises described in her petition until the commencement of these homestead proceedings, when she voluntarily left the same. The children of the former marriage have not continued to reside with her. During nearly all the time Fred W. has resided elsewhere, at school and other places. About a year before filing the petition, Charles and Alice went away to school, and Stella remained with her only for a time. Her own son has continued to reside with her. On the 20th of October, 1877, Thomas W. Moore was, by the Probate Court, appointed guardian of the persons and estates of Fred W., Charles, Alice, and Stella, and they have ever since been members of his family, and are under his control. Ho homestead had been declared during the lifetime of deceased.

The petition of the widow for a homestead was filed August 2nd, 1877. Thomas W. Moore as administrator, and the said Fred W., Charles. Alice, and Stella, by their said guardian, [442]filed their objections to the granting of the prayer of the petitioner. The substantial point of the objection is, that, on the 2nd day of November, 1871, the petitioner executed a deed to said Fred W. and Charles Moore of her right, title, and interest in the real estate left by her said husband; and that although the deed was a quitclaim deed, executed before the commencement of administration, yet by it, in effect, she sold and conveyed all her interest of every description, at law and in equity, in and to all said real estate, including any right to have a homestead admeasured therefrom, and she is now es-topped from asserting any claim of any description to said real estate, or any part thereof, and ought not to be permitted to assert a claim of homestead. It was upon this point that the Court below denied her petition.

We are of opinion that the Court below erred in refusing to admeasure and set apart a homestead. The deed of Mrs. Moore is silent upon the subject of homestead: whatever its effect as a conveyance, it was no more than to convey the interest in the property of the deceased, which she received upon his death, by succession. A homestead right, or a right to have a homestead, is not a right which vests under the law by succession. It is a right bestowed by the beneficence of the law of this State for the benefit of the family. Upon the death of an intestate, his property goes by succession to his heirs, subject to administration. The objects of administration are: 1st, to support the family for a period ; 2nd, to set apart a homestead to the family ; 3rd, to pay the expenses of administration ; 4th, to pay the debts of the deceased; 5th, to distribute the balance of the estate to those who take it by law. If an heir convey his interest in the estate, or any part thereof, he conveys such interest only as will remain to him after satisfying the first four objects above named, unless the deed should in terms expressly cover more. Setting apart a homestead is a part of the probate proceeding, as much as is a family allowance. Suppose there had been a guardian’s sale of the interest of any one of the minor children (not yielding enough for his or her support), could it be said that such sale would prevent the child from having a proper allowance? By no means. The sale would pass simply the right of the child by succession. In the case