Case 85 — 'Action by Dennis Higgins, &c. against Honora Higgins Involving the Right to a Homestead.

Feb. 26.

#### Higgins &c. v. Higgins.

APPEAL EROM JEEEERSON CIRCUIT COURT, CHANCERY DIVISION, NO. 1.

From the Judgment Dennis Higgins and Others Appeal.

Reversed.

Homestead — Intention to Occupy — Rights oar Widow — Coneinement in Asylum.

Held: 1. A husband’s! unexecuted intention to occupy certain land as his homestead was insufficient to create the right of homestead therein.

2. Under Kentucky Statutes, 1903, section 1702, providing the conditions on which the right of homestead in real property exists, and section 1707, declaring that the homestead shall he ■for the use of the widow so long as she occupies it, and that the unmarried infant children of the husband are entitled to joint occupancy with her, a widow had no homestead right in property of which her husband died seised which he had never occupied as a homestead.

S. In a proceeding to determine a widow’s interest in real property of which her husband died seised, the fact that she was insane and confined in 'an asylum after her husband’s death had no hearing on the question as to whether she took a homestead or dower interest in the property.

MATT. O’DOHERTY, eor appellant.

1. Our contention is, that unless Bartholomew Higgins, the owner of the land in controversy, occupied it as a homestead in his life time and at the time *of*his death, his widow, Honora Higgins, could have no homestead right therein.

2. The burden is ion the party claiming the homestead to .show her right to it. Fant v. Talbot, 81 Ky., 25; Hansford V. Holdam, 14 Bush, 210.

Opinion oe the court by

JUDGE PAYNTER

Reversing.

Bartholomew Higgins died, leaving as his widow Honora *726Higgins and two children, Mary and Dennis. Mary is dead, and Dennis is over 21 years: of age. The question for determination on this appeal is whether the widow has a homestead or dower in a house and lot in ihe city of Louisville of which Bartholomew Higgins died seised.

The evidence tends to show that at one time after the death of her husband the widow occupied the house with the children but for how long is not disclosed. The evidence fails to show when the husband died, or where he then lived, or that he ever occupied the house with his family or at all as a homestead, if he never occupied it with his family as a homestead, he never acquired a right to a homestead therein. An unexecuted intention to. occupy it did not create the right. Fant v. Talbot, etc., 81 Ky., 25, á R., 656; Hansford v. Holdam, 14 Bush, 210. As the evidence fails to show that the husband had the right to the homestead in the property when he died, it is not shown that the widow did have such right. Section 1702, Ky. St,, 1903, states the •conditions upon which one has a homestead in real property. Section 1707 provides, that the homestead shall be for the use of the widow so long as she occupies it, and the unmarried infant children of the husband are entitled to a joint occupancy with her. The language used shows the widow’s right to a homestead is predicated upon the pre-existing right of the husband to it. The court erred in holding that the widow had a right to homestead in the property instead of the right to dower therein. The fact that the widow is now insane and confined in an asylum does not having any bearing upon the question as to whether she took a homestead or dower interest in the property.

The judgment is reversed for proceedings consistent with this opinion.