
    Case 80 — PETITION ORDINARY
    April 26.
    Ellis v. Davis.
    APPEAL FROM ICENTON CIRCUIT COURT.
    1. The homestead of the wife continues after her death for the benefit of the surviving husband so long as he continues to occupy it, although there are no children, and although the husband has no family living- with him; and this right exists as against the heirs of the wife, as well as against creditors.
    2. What Constitutes a “Family ” Within Meaning of Homestead Law. — One whose family consists only of himself and a housekeeper is not a bona fide housekeeper “with a family” within the meaning of the homestead law, and is, therefore, not entitled to a homestead in his own right.
    A. C. ELLIS and D. A. GLEHN for appellant.
    1. In an action of ejectment equitable matter can not be pleaded as a defense. (Coleman v. Casey, 1 Mar., 440; Stinebaugh v. Wisdom, 13 B. M., 468.)
    2. Upon the death of the wife the husband is not entitled to a homestead in her land, either as against a creditor or the legal heir to the estate, unless he is a bona fide housekeeper with a family; and the person or personS'residhig with him, and constituting such a. family, must he those whom ho is under a moral or legal obligation to support. (Washburne on Real Property, vol. 1, p, 343; Gunn v. Gudehouse, 13 B. M., 468; Beaton v. Marshall, 6 Bush, 430; Brooks v. Collins, 11 Bush, 622; Miles v. Hall, 12 Bush, 105; Little’s Guardian v. Woodward, 14 Bush, 588; Allensworth v. Kimbrough, 79 Ky., 332; Bell v. Keach, 80 Ky., 44; Lloyd v, Lloyd, 6 Ky. Law Rep., 551; Riley v. Smith, 9 Ky. Law Rep., 615; Carter v. Adams, 9 Ky. Law Rep., 91.)
    ORLANDO P. SOHM1DT eor aprellbe.
    The surviving husband has the same rights in the homestead owned by the wife that the widow has in the homestead owned by the husband, and to entitle him to the continuance of the exemption it is not necessary that he should be a bona fide housekeeper with a family. (Gen. Stats., chap. 38, secs. 14, 15, 16, and amendment of March 15, 1870; Gasaway v. Woods, 9 Bush, 72; Eustache v. Rodaquest, 11 Bush, 46; Miles v. Hall, 12 Bush, 105; Little’s Gd’n v. Woodward, 14 Bush, 585; Gay v. Hanks, 81 Ky., 553.)
   JUDGE HOLT

delivered the opinion oe the court.

In October, 1882, the wife of the appellee, Albert Davis, acquired the land in contest. They occupied it as a homestead until November, 1885, when she died. It is worth less than one thousand dollars. They had no children. The two brothers of the wife were her only heirs. One of them conveyed his interest in the land to the other, who is the appellant, Andrew Ellis. He brought this action against the appellee, who, after the death of his wife, continued to live upon the land as a housekeeper, and now claims the right to it as a homestead so long as he continues to occupy it.

The wife never having had any issue born alive, the husband has no estate by curtesy in the land, and no interest, unless it be a homestead right. The single •question, and which now, for the first time, is presented to this court, is, does the homestead, the title to which is in the wife, continue after her death for-the benefit of the surviving husband, although there are no children?

The right to the exemption is a statutory one, and we must, therefore, turn to the statute for guidance. If the appellee’s right to it depends upon his being a tona' fide housekeeper, with a family, upon the land, then his claim to it must fail. This court has repeatedly decided that one can not be so regarded, unless there are those living with him who not only bear a dependent relation to him, but whom he is under a natural or legal obligation to maintain. (Brooks, &c., v. Collins, 11 Bush, 622.)

The answer of the appellee avers that he is, and has been since the death of his wife, a tona fide housekeeper upon the land, and that 1 £ his family has consisted of himself and a housekeeper.”

Section 9, article 13, chapter 38, of the General Statutes, provides: “In addition to the personal property exempt from execution by this .chapter, there shall, on all debts or liabilities created or incurred after the first day of June, 1866, be exempt from • sale under-execution, attachment or judgment of any court, except to foreclose a mortgage given by the owner of a homestead, or for purchase money due therefor, so much land, including the dwelling-house and appurtenances owned by the debtor, as shall not exceed in value one thousand dollars;” and section 16 of the-same article says-. '“The exemption provided for in this chapter shall apply to all persons, of any race- or color, who are actual tona fide housekeepers, 'with, a family, of this Commonwealth.”

Accepting tlie averment of the appellee’s answer as true, yet manifestly he is not, under the rule laid down by this court, a “bona fide housekeeper with a family.” It is urged, however, that upon the death of 'a husband who has a homestead right, it, by the terms of the statute, continues for the wife so long as she may occupy it as such, and that the husband has the same right in the homestead of the deceased wife without regard to whether or not the survivor has a family living with him or her. In other words, that the right in such a case is derivative, not depending upon whether the claimant has a family, and that this requirement as to a family applies to the creation of the right at the outset in the husband or the wife, and not to the continuance of it in the survivor. In this view we concur, and it is supported by the construction heretofore given by this court to the section of the statute relative to the right of the- wife in the homestead of her deceased husband.

What is known as the “homestead act” became a law February 10, 1866. As originally enacted, it merely provided: “Such exemption shall continue after the death of the defendant for the benefit of his widow and children, but shall be estimated in' allotting dower.” (Myers’ Supplement, page 715.) It gave the husband no homestead right, in any event, in the homestead of the deceased wife. There was no condition in it as to occupancy by the widow, nor was the right of the children limited to their infancy. When the General Statutes were adopted in 1873 the law was enlarged, and the rights of the widow and children further defined.

Chapter 38, article 13, contains these provisions:

Section 13. * * * “Such exemption in favor of an execution debtor, or one against whom judgment has been rendered, shall continue after his death for the benefit of his widow and infant children, but shall be estimated in allotting dower.”

Section 14. “The homestead shall be for the use of the widow so long as she occupies the same, and the unmarried infant children of the husband shall be entitled to a joint occupancy with her until the youngest unmarried child arrives at full age; but the termination of the widow’s occupancy shall not affect the right of the children; but said land may be sold, subject to the right of said widow and children, if a sale is necessary to pay the debts of the husband.”

Section 15. “The homestead of a woman shall, in like manner, be for the use of her surviving husband ■and her children situated as above, and when his and their interest ceases, it shall be disposed of in like manner, and the proceeds applied on the same terms to her debts; if none, divided among her children.”

It is urged that the Legislature was moved to make the exemption to prevent the disturbance of families by creditors, and to save humble homes for wives and children. It is doubtless time that this humane and politic purpose led to the passage of the original law. This court has often said so; but in construing the statute it decided, in the case of Gasaway, &c., v. Woods, &c., 9 Bush, 72, that the widow is entitled to the exemption, if there be no children, and that her right is not made to depend upon any such contingency. This case has been followed by Eustache v. Rodaquest, &c., 11 Bush, 42, and Gay v. Hanks, 81 Ky., 552.

Tke case in 11 Busk also decides tkat tke exemption applies against heirs as well as creditors. It may, therefore, be regarded as fully settled tkat, under tke statute, tke exemption continues for tke widow, although there be no children, so long as she occupies the komestead left by the deceased kusband. This may also be accepted as a construction of tke statute conforming to tke legislative intent, and as being its true meaning and spirit, because, altkougk tke case of Gasaway, &c., v. Woods, &c., supra, was decided nearly twenty years ago, and has been followed by other cases to the same effect, tke law has. remained unchanged.

By parity of reasoning it follows tkat a like construction must be applied to tke section relating to tke right of tke husband in tke komestead of tke deceased wife, because it and tke section relative to her right in tke komestead left by him are the same in substance. Undoubtedly tke Legislature had the-right to so provide. It was a matter within tke discretion of tke law-making power; and in view of tke language of tke three sections, and tke long continued construction given by this court to tke one giving tke widow a komestead right, it can not be doubted that tke Legislature intended to put both tke kusband and tke wife upon tke same footing as to tke komestead.

It is not our province to inquire what reason induced suck action upon tke part of tke Legislature. The widow has dower in tke lands of tke kusband without Tegard to whether issue he bom to them. The law under consideration provides that the exempt homestead shall be estimated in allotting dower to her. The husband, upon the other hand, has no estate by the curtesy in the wife’s land unless issue be born alive to them. This difference in their relative rights may, in part at least, have induced the Legislature to give him a homestead right in the homestead left by her, although there are no children, thus affording to him, in needy old age perhaps, a shelter and a home. ,

The judgment of the lower court accords with the view of the law as herein expressed, and it is affirmed.  