#### Estate of Arndt: Arndt, Appellant, vs. Schultz and others, Respondents.

*April 4*

April *30, 1929.*

*2For the appellant the cause was submitted on the brief of *Otto A. Lemke,*attorney, and *M. H. Sell,*of counsel, both of Milwaukee.

For the respondents there was a brief by *Carl F. Geilfuss,*attorney, and *Alfred H. Nicolaus,*of counsel, both of Milwaukee, and oral argument by *Mr. Nicolaus.*

Eschweiler, J.

The appellant and deceased, Albert Arndt, were married in January, 1921. Shortly thereafter they built a duplex flat at No. 602 Fifty-third street in Milwaukee, the title to which remained in the deceased until his death and subject then to a mortgage of $7,000. The couple moved into this house May 29, 1921. In 1924 they purchased two adjoining lots on Fifty-seventh street and built thereon two duplex flats substantially alike. The one designated as No. 541 was in the name of the deceased and subject to a $4,000 mortgage; No. 543 was in the name of the appellant, Rose B. Arndt, and subject to a mortgage of $10,000. In November, 1924, they moved into No. 543 and continued to live there until the death of Albert, April 25, 1926, he then being about sixty-two years old. The widow continued to live there until the time of the hearing. The first property on Fifty-third street, as well as 543 Fifty-seventh street, in which they were living, were continuously on the market for sale. The two flats at 541 Fifty-seventh street, on the property owned by the deceased, were rented up to his death. One of the flats at No. 543 was also rented.

On the hearing four witnesses, including the brother of the deceased, testified to statements having been made by the deceased at various intervals up to the week before his death, to the effect that it was his desire to have sold the property in which they were then living, No. 543, and then upon such sale to make the property at No. 541, title to which was in deceased, their home.

*3A reasonable construction of the testimony of these witnesses supports the conclusion of the trial court that the expressed intention of the deceased to make the property in his name, No. 541, his homestead, was continuously coupled with the condition precedent of there being a sale of the property at No. 543, belonging to the wife, and one flat of which was then occupied by the two as their home.

The widow of Albert Arndt, appellant here, in order to establish her claim to the property 541 Fifty-seventh street, owned by her husband at his death, as the property to which she could assert homestead title, was required to show, by sec. 272.20, Stats., that it was “owned and occupied” as a homestead by the deceased at the time of his death. While the statutory provisions for homestead exemption have been and should be very liberally construed *(Papenthien v. Coerper,*184 Wis. 156, 159, 198 N. W. 391), yet in a situation such as was here presented there was lacking the prime requisite of a showing of some overt act indicating a then present intention to set aside the particular property as and for a homestead in addition to a showing of a merely mental attitude to the same purpose. Such was expressly held in the case of *State Bank of Waupun v. Storm,*169 Wis. 295, 297, 172 N. W. 151, and upon which decision the trial court properly supported his conclusion. Here the deceased and his wife occupied continuously as their home the premises at No. 543, belonging to the wife, from November, 1924, until his death in April, 1926. During all that time the possession and occupancy of No. 541, belonging to the husband, was, through leases made by him, in- the ever-present control of tenants, this all clearly negativing any immediate, present intention to take present possession of No. 541, or to do so at any definitely fixed time in the future.

We are satisfied that the widow’s claim of homestead was properly denied by the trial court, and we deem further discussion or citation of authorities unnecessary.

*By the Cowt.*— Order affirmed.