Lankford v. Lewis

delivered the opinion of the court.

W. J. Lewis died September, 1869, leaving complainant in the cross-bill his widow, and the six de*128fendants his children, as his heirs; as stated at the bar, the children are his children by a former wife. Lewis left two tracts of land. The widow petitioned for and had her dower assigned her in the lands of her husband; after this, a petition was filed by the administrator to sell land for the payment of debts, on the ground of exhaustion of personal assets. In the decree ordering the sale, it is stated that the widow “waives her right of homestead as against the debts of the estate, but reserves her right to her homestead out of any land after the debts of said estate have been paid.” This decree was made May term, 1872.

The case has been argued before us on the assumption that the widow was entitled to the benefit of the homestead in addition to dower, under the act of March 12th, 1868. The right of the widow, it may be correctly assumed, whatever it is, rests on this act, the husband dying in 1869.

The act of 1868 is as follows, Sec. 2: “That the homestead of any housekeeper or head of a family, residing in this State, to the value of one thousand dollars instead of five hundred, as now provided by law, consisting of a dwelling house and out-buildings, and land appurtenant, occupied by such person as a homestead, shall be exempt from execution or attachment, for the debts of any such head of a family or housekeeper.”

We think it too clear for argument, that this act alone applies to, and gives the homestead as against a creditor of the head of a family or householder, who *129is seeking to enforce his debt by execution or atachment, against such householder or head of a family. It is true Sec. 2115, which requires the declaration of intention to claim a homestead to be registered, is repealed by the act, but the other provisions remain, and only provide the mode of setting it apart, but do not giye any right to the widow, or any estate to her in the land. In fact her rights are not intended to be affected by these statutes, she being simply left as before to her right of dower on the death of the husband. The first act that gave her any rights on this subject, was the act of 1870, passed in pursuance of the provision of the constitution of 1870; see Code, sec. 2114a.

The court below seems to have followed the supposed opinion of this court in the case of Merriman, Adm’r, et als. v. John H. Lacefield et als., 4 Heis., 220. It is not very clear what was the view of the learned judge in that opinion on this question, but if the opinion can be construed into holding that the widow was entitled under this act, to dower as well as homestead, it is not sustained by the statute and is not law.

The homestead as provided for by law is given by our statutes, and only by them, so that it attaches alone where so given. A homestead was never intended to be included by any of our statutes, under the idea of articles exempted from execution, which go to the widow, and not to the administrator by our statutes. The language of the act of 1868 is too clear to admit of doubt in its construction, and only gives the ex*130•emption as against a creditor with attachment or execution.

In this view of the case, the decree below must be reversed, and the cross-bill dismissed at the cost ■of the widow.