The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1878-08-06

| to select or set apart were he now living
and asserting his claim to the homestead
The only question. therefore, decided in
Hattortf Us. Wexford, Judge (suprG), was
that the widow has the right to claim home
stead for herself and minor children In the
estate OF her deceased husband, where he
has not claimed it and set it apart in his
| lifetime, as against the creditors OF her hus-
band. So that we have now before lis for
the first time the question whether under
the Constitution and statute law OF this
State widow can claim homestead where
THERE ARE NO CREDITORS
agaip The, heirs. This question, as was
said in the beginning, must be determined
alone upon the true construction to beglyen
to the act Of Assembly and the provisions
OF the Constitution, upon which it is
founded. 1t is to be promised that while
in the petition of appeal it is assigned as
one ground OF error that the Court did not
direct its commissioners TO inquire whether
there were DEBTS due for which the real
estate was liable. it was regarded as con-
ceSSion in the case in the court below that
the decedent died owing no debts. The
bill asserts that the personal estate was more
than sufficient to pay any debts for which
dccedent was liable. This is nowhere de-
MED; and, indeed, the Court by its decree
| declares that the ''decent died owing no
debts" This will be taken as c0ncesSnnp
| in this court, as it was in the court below.
| The decedent in this case left no chill
dren. His heirs at law were his mother,
brothers and sisters, and their descendants.
Under the statute OF descentS and dstribu-
| tions the real estate descended TO these heirs,
subject to the widows dover in one third
thereof, which was duly assigned 10 her.
Upon the death OF John Helm his
real estate Immediately descended, and
the title thereto became at .once vest:
ed in these heirs. Was it divested
and transferred for her life to the
widow by virtue Of the act OF Assembly
above referred TOP Section 10 OF that act
provides that if any such householder or
head OF family shall have departed this
life since rhe adoption OF the present Con-
sttutlon, leaving Il widow or infant chill
dren, and such homestead shall not have
been selected or assigned in the lifetime of
said householder, &C., she, il remaining
unmarried, or they. il she marry or die
before such selection. shall be entitled
to claim the same, and the Court shall
appoint commissioners to assign the same,
in the same manner that commission
ers are appointed to assign dover; and tue
homestead so assigned shall be held by the
widow and children to the extent and on
the same conditions prescribed in section
OF this act.' Section s, herein referred TO,
declares that
THE HOMESTEAD PROVIDED
Gin this act should continue after his death
Il. e., after the death OF decedent who
has claimed and set apart his homestead
during his liietime) for the benefit OF the
widow and children Of the deceased until
her death or marriage, and after her death
or marriage for the exclusive benefit OF his
minor children until the youngest child be-
comes twenty-one years Of age"
Under these provisions it is plain. when
construed, as they must be, with reference
to the provisions of the Constitution, that
the homestead which the widow may claim
after the death OF her husband (who dies
without having selected and set apart {
homcstcad) is Of the same character as that
which the husband may have been ''enti
tied to hold" in his lifetime-that is, a home
stead held i" exempt from. lery. seizure. gar
nisheeinq, or sale 1tnder any erecuti0n, or
der, or other process issued on any demano
for any debt" &c. The claim OF Homestead
to be asserted by the widow, under
the stature and the Constitution, i:
IL claim which she can only assert agans
the creditors of her husband, and not aganS
his heirs If there be no creditors she i:
not entitled to claim homestead in her hus
bands estate. The question whether
widow without minor children can CLAIM
for herself n homestead against creditor:
does not arise in this case, and upon thi!
question 1 express no opinion. The home
stead when claimed by her in proper case
| ,ln,, fhnra
bv her "to the extent and upon the same
conditions prescribed in section s o
the act ''-that is. "for the benefit OF th'
widow and minor children" Ii there b'
no minor children she cannot hold home
stead against the adult children, nor cat
she hold it, if there be No children, as ir
this case, against the heirs OF her husband
In such case she is only entitled to hel
dover, but not to homestead, in her hus
: bands estate. Any other construction o
the statute would be to declare that
THE STATUTE OF DEsCESTS
and distributions had been repealed
or modified by the homestead laws
Surely the Legislature never intend
ed by the enactment OF home
stead law to repeal or modify the statute o
descents in this State, which has becom
sacred by its antiquity, and one OF the mos
important and valuable enactments affect
inc the rights OF property in the lurispru
dcnce OF this State. We cannot give such
construction TO these laws as will repeal o.
modify to any extent this useful and yencra
BILE statute unless such intention planl,
and unmistakaby appears by a direct re
pealing clause or the most necessary lmpli
cation.
II we give to the homestead law the con
struction contended for in this case ~
. would give to the widow not only her dover
but The achole of the real estate OF her hus
. band, to the exclusion OF his heirs. w
would, in effect, declare that law, the sol
object of which is the security Of the debto
and his family against the demand
OF the creditor, should have the ell
feet Of taking away, IN many In
| stances, the whole property OF deceden
from his children and heirs, and giving til
whole to his widow during her lie, and o
. changing the whole course OF descents AM
distribution OF property, which has fiowe'
in one channel for more than 4 century
Such construction can never have the as
sent Of my judgment or the sanction OF m
, judicial action. am OF opinion that tli
, claim OF homestead can only be asserted b.
widow against the creditors OF her huS
band, and never against his heirs; and i
the case before us that the widow is onl
t entitled to dover, and not to homestead
. There is only
ONE OTHER QUESTION
raised in the record necessary to be noticed
, The widow had upon her motion in tn
, County Court Of FLOYD county procured tn