
    WIDOW’S RIGHTS IN PROPERTY JOINTLY OWNED WITH HER HUSBAND.
    Helen Riede Stegeman v. Elizabeth Riede, et al.
    
      Partition — Claim of Widoio of Right to Homestead in Property of %ohich she is Part Otuner.
    
    
      Robert Fosdick, for plaintiff.
    
      Edwin G. Becker, for defendant Elizabeth Riede.
    
      Robert Black, for executor.
   Roettinger, J.

The action is one in partition, in which the executor of the estate of Demeter Riede, deceased, has filed an answer setting forth the claim that the real estate described in the petition, and formerly belonging to the deceased, must be sold to pay the debts of the estate, and joining in the prayer for a sale of the premises. All of the answers of the many defendants join in this prayer.

The answer and cross petition of the defendant, Elizabeth Riede, sets forth the claim that she is the widow of the deceased, admits the probate of the will, and the fact that the deceased was the owner of the real estate as set forth. Her cross petition goes on to set forth the claim that during the lifetime of her husband, Demeter Riede, she and he were the joint owners and each seized in fee simple of an undivided one-half interest in the property-described. Further, that at the time of his death they resided on the premises and were' using and occupying them as their family homestead. She claims that she is entitled to a homestead as widow, in the real estate of her deceased husband, and also that as such widow she is entitled to her dower in the undivided one-half interest of husband, and still further that she is entitled -to have set off to her as such widow the sum of $500 as her first year’s allowance.

The executor has filed an answer to this cross petition, admitting that Elizabeth Riede is the widow of Demeter Riede, and that during the latter’s, lifetime, he and she were joint owners and each seized in fee simple of an undivided one-half interest in the property described and sought to be partitioned; that the real estate is improved by a double dwelling house; that Elizabeth Riede and her late husband occupied one one-half of the building and that the other apartment, or half, was, and is, rented to a tenant. The answer then claims that as she is the owner of an undivided one-half interest in her own right in fee simple, she is not occupying a homestead in the lands of the deceased.

In our opinion this view is highly tenable and with it we agree.

Certainly it is impossible for the claimant to occupy either two different premises at one time, or occupy one premise in two different capacities at the same time. If the property is hers in fee simple, certainly she has no homestead in the same, and further, she can not maintain any claim to a homestead in any property occupied by a tenant.

An entry should be made in accordance with the above, and ordering an accounting between the executor and Elizabeth Riede.  