White v. Plummer

Citations

• 96 Ill. 394
• 1880 Ill. LEXIS 47

Syllabus

<p>1. Homestead—abandonment—effect of a conveyance of ike premises in fee. The owner of premises occupied by him as a homestead, devised the property to his wife during her life time, and the remainder, together with other real estate, to another. Upon the death of the testator, the widow renounced the will of her husband, electing to take her dower and legal share of the estate. Subsequently, upon petition for dower and homestead, the premises, which had continued in the occupancy of the widow, were set apart to her as her homestead. Thereupon the widow conveyed the premises, for value, to a third person, by warranty deed, in fee, the grantee going into possession. In ejectment by the residuary devisee, under the will, against the grantee of the widow, it was held, the alienation, by the widow, of the premises so set apart to her as her homestead, did not, of itself, operate as an abandonment by her of her homestead right therein, or as an acceleration of the estate, in any such sense as would enable the plaintiff to recover. The conveyance in fee only passed the estate which the grantor had, and that she had a right to convey, without destroying such estate.</p> <p>2. Same—as to the question of occupancy—by whom—construction of the statute. The statute provides that the exemption of the homestead “ shall continue, for the benefit of the husband or wife surviving, so long as he or she shall continue to occupy such homestead.” This, however, is not to be understood as restricting the actual occupancy to the person entitled to the estate of homestead. Occupancy by another, even under a deed purporting to convey the fee, there appearing no intention to abandon the right, will be regarded as an occupancy by the person who originally took the estate. The power of disposition, or the right to choose as to the mode of enjoyment of the homestead, is as absolute as the right of the owner of the fee, in respect to his estate in the premises.</p> <p>3. Same—rights of a widow,