
    Lucy Jones, et al., v. R. H. Williams, et al.
    Homestead — Wife’s Interest.
    During the life of the husband the wife has no interest in his real estate and the homestead act was not intended to give her any. All she has is the power to prevent a mortgage release or waiver by the husband of the exemption given him. She cannot compel her husband to assert his right to the exemption, nor can she assert it for him or for herself during his life.
    
      Abandonment of Homestead.
    Occupancy is necessary to entitle the debtor' to a homestead exemption and the act of the husband in removing from the premises and establishing his home elsewhere is an abandonment -of the homestead exemption.
    APPEAL PROM McCRACKEN COURT OP COMMON PLEAS.
    December 14, 1878.
   Opinion by

Judge Cofer:

Neither the wife nor children of the owner of a homestead have any independent interest in the exemption during his life. The statute gives the exemption to the husband as long as he is alive, and it is only after his death that the wife and children are declared to be entitled to it. During the life of the husband the only effect of the statute is -to disable him to waive the exemption without his wife will unite with him in doing so. The wife has a sort of veto power over the right of the husband to waive the exemption. But her power goes no further.

The right to the exemption depends upon occupancy, but the husband still continues to be the head of the family and may abandon his homestead whenever he chooses to do so, or he may make an absolute sale of it at his own uncontrolled discretion. Brame & Wife v. Craig, 12 Bush 404. It is only when the husband sees proper to assert his right to the exemption that it is important to inquire whether the wife has united in waiving it. If she has not, then he is entitled to the exemption, not because there is any right in his wife and children, but because the statute declares that he cannot mortgage his homestead, except by writing subscribed by himself and his wife, and acknowledged and recorded. The act of the wife in subscribing and acknowledging the mortgage, release or waiver of the exemption does not pass anything vested in her by the statute, but merely makes efficacious the act of the husband to divest himself of the exemption given to him. If the wife does not unite, the exemption continues, because the condition, and the only condition, upon which the right of the husband to claim it can be divested, has not been performed.

During the life of the husband the wife has no interest in his real estate, and the homestead act was not intended to give her any. All • she has is the power to prevent a mortgage release or waiver by the husband of the exemption given him. No power is given to her to compel her husband to assert his right to the exemption, or to her to assert it for him or for herself during his life. At least she has no such right when he has voluntarily removed himself and family from the homestead, and thereby abandoned it.

To hold that the homestead act has the effect to give the wife a present interest in the real estate of the husband might lead to very novel and absurd consequences, totally at war with all our views of the marital relation, and utterly subversive to the harmony of families and the best interests of society.

The statute expressly declares that the exemption shall be of “so much land, including the dwelling house or appurtenances owned by the debtor, as shall not exceed in, value one thousand dollars,” and that “Before a sale, under execution order of attachment or judgment of a court, of land occupied as a homestead,” a homestead shall be allotted.

It has accordingly never been doubted that occupancy is necessary to entitle the debtor to the exemption, and this court has repeatedly so held. Brown, Bro. & Co. v. Morton & Co., 4 Bush 47; Jarboe v. Colvin, 4 Bush 70; Carter, Fisher & Co. v. Goodman, 11 Bush 228; Miles v. Hall, 12 Bush 105.

If, -then, the wife has a present interest in the exempted homestead, she must either be subject, contrary to every principle of natural justice, to be deprived of that right by the act of the husband in abandoning the homestead and ceasing to occupy it, or she must have a legal remedy to prevent him from doing so.

In this case the wife says she did not intend to abandon the homestead; that she went to Paducah for a temporary purpose. But the husband does not say so,.and his acts and the length of his residence in the city show that he did abandon the homestead, whether he meant,to do so or not. He might have,acquired a homestead in Paducah, and might desire to claim it against his creditors, while his wife might prefer to claim the homestead at the county .seat. How would such á disagreement in domestic tastes and wishes, and such conflicting right and interests of husband and wife be adjusted by the courts? A construction of the statute which renders such absurd consequences possible, cannot be the true construction.

The act of the husband in removing from the premises an¿ remaining absent for more than two years, during which time he kept house and voted several times, when he had no right to vote except on the assumption that he was a bona fide resident there, was an abandonment of the homestead exemption. And if it were not, he has not claimed the exemption, and his wife has no right to do so for him or for herself after their removal from the premises.

W. D. Greer & P. D. Geiser, for appellants.

L. D. Husbands, W. M. Smith, W. W. Tice, for appellees.

Judgment affirmed.  