The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1878-08-06
TEE HOMESTEAD
The Rights Of wlaows Considered.

IMPORTANT OPINION OF THE SUPREME
COURT OF APPEALS IN THE CASE OF
HELM VERSUS HELM AND oTHERs-CAN
A WIDOW WITHOUT MINOR CHILDREN
CLAIM A HOMESTEAD IN THE ESTATE OF
HER HUSBAND AS AGAINST THE HEIRS
At LAW9
At the recent session of the Supreme
Count at Wytheville Judge Christian de-
liFered the unanimous opinion OF the Court
in the case OF Helm Us. Helm and others, as
follows:
The main question we have to determine
in this case is whether the widow OF de-
cedent (who in his lifetime has failed to
claim and set apart a homestead, and who
dies leaving no children, and there being
no credtorS) can claim homestead in the
estate Of her husband
In the case before us, upon motion OF the
widow, commissioners, appointed for that
| purpose, after laying off and assigning to
| her one third OF the real estate Of her hus-
band as her dover, also set apart TO her the
| remaining two thirds-that being valued at
the sum OF S2,000-the amount Of home
stead exemption in this State. SO that ac-
cordinr TO the report Of the commissioners
tbe whole real estate OF the decedent was
transferred to the widow for life. to the
exclusion OF the heirs. Exceptions, how
ever, were taken to the report OF
the commissioners by The heirs OF dece-
dent. one OF which (the third exceptlon)
was as follows: ''And complalnants 1ur-
ther except to the assignment OF nome
stead for the following reason: That the
widow is not entitled to homestead in addl-
tion to her dover and years support" The
Court sustained this exception by the follow
ing decree:
ton to the rcport OF commissioners, OF as
sienment OF homestead, the Court being OF
opinion that the widow OF dccedent who
died since the present Constitution OF Vlr-
cinia went into effect is not entitled TO q
| homestead in the estate OF her husband !;
where. as in this instance, the decedent died
owing no debts, and that while said home
stead may he claimed and held as against
creditors whose claims were contracted
since The present Constitution went into
effect, in case there is no waiver OF home.
stead in favor OF said creditors, that said
homestead cannot be claimed and held
against heirs-at-law and distributes OF the
decedcnt's estate"
From this decree an appeal was allowed
\
THE QUESTION
we have to determine is one purely OF con-
struction. and must be determined alone
upon the true Interpretation to be given to
the provisions Of the Constitution IN rela-
ton to the homestead exemption. and the
statute law passed in pursuance thereof.
Section 1st, article XI., Of the ConStltn'
ton provides that "every householder OF
head Of family shall be entitled, in addi'
ton to the articles now exempt from levy
or distress from rent, to hold exempt from
levy, seizure, Sarnsheeing, or sale, under
anv execution, order, or other process is
sued on any demand for any debt
hereafter contracted, his real and personal
property, or either, including money OF
debts due him, whether heretofore OF here
after acquired or contracted. to the value
OF not exceeding two thousand dollars, to
be selected by him: provided" Nc. and
then follows certain specified exceptions to
which such exemption shall not apply, not
necessary to be.noticed here.
The 9Th section Of same article contains
the following provision: "fbe General
Assembly shall at its first session un
der this Constitution prescribe in
what manner and on what condition:
the said householder or head Of family
shall thereafter set apart and hold for hlm
self and family homestead out OF any pro
perty hereby exempted, and may in its dis
cretion determine in what manner and or
what conditions he may thereafter hold FOL
the benefit of himself and family such per-
sonal property as he may have, and comma
within the exemption hereby made. But
this section shall not be construed as autlio
rizing the General Assembly to defeat OF
impair the benefits intended to be conferred
by the provisions Of this article"
Section declares that ''the provision:
of this article shall be construed literally
to the end that all the intents thereof may
be fully and perfectly carried out"
have thus quoted in full all the prov
sions OF the Constitution having reference
THE SUBJECT UNDER INQUIRY.
In accordance with the requirements o
the 9Th section, above quoted, the Genera
Assembly duly proceeded, at its first session
after the adoption Of the Constitution, t
prescribe ''in what manner and on Wha
conditions the householder or head OF |
family should set apart and hold for TIT
benefit of himself and family homestead
out Of any property exempted"
In doing this they went step beyont
the specific requirements OF the constitu
, tional provisions above quoted, and pro
vided for the case OF party dying without
claiming homestead, making no provision
for the widow al d infant children OF sucl
deceGent. 1t is noticeable that the Constitu
: ton, by its terms, makes no provision fo
the widow OF infant children OF a decedcn
who dies without having claimed home
stead. The provisions of the Constitution
are confined to the party himself, de
: carin@ that he "shal be entitled
to hold and set apart for the benefit OF him
sell and family" the exempted property
q And it has been earnestly contended, ant
. with much force, that it was not contem
plated by the trainers OF the Constitution
. that any provision should be made fnrthe
!, than for the benefit of the party who in hi
!. lifetime claims and sets apart his home
. stead, the Constitution itself making IL
! mention Of the widow and children Of de
cedent who in his lifetime has failedt
: claim the same. But think it is clear that
while the Legislature cannot impair o
abridge the rights OF homestead secured b.
the Constitution, it may enlarge such right
and confer them upon class OF persons no
specifically mentioned in the Constitution
Indeed, this question has already been de
finitely settled by this Court. In Hattorh US
Wexford, Judge, 27 Grat., 356, the preci>
question to the constitutionality OF tn
act which confers the ri ght to
7 CLAIM HOMESTEAD
upon the widow or minor childre
OF decedent who had not claime'
: and set apart his homestead in his life