that the right of survivorship cannot exceed the statutory limit of value, and that, after the death of either claimant, the survivor succeeds only to so much of the homestead as, immediately preceding the death of the other cotenant, did not exceed five thousand dollars in value.'

2 60.

The homestead right cannot be partitioned against the objection of the surviving wife, on the application of the other heirs, and after the decease of the husband. She has the right, at least as long as she resides on the premises with her family, or with any minor children of the family, to occupy and enjoy the whole homestead. The heirs cannot curtail this right by compelling her to submit to a partition of the premises, and to confine her subsequent enjoyment to the portion assigned to her.' But where it is claimed that the premises embraced in the homestead declaration, at the death of the husband, exceeded in value the limit provided by statute, the widow must submit to such proceedings as may be necessary to segregate her homestead tract or interest from the more valuable tract embraced in the declaration.

61. After a divorce of the spouses, a variety of questions may arise in reference to the effect of this dissolution of the marital relations upon the homestead right. Does the homestead still retain its character, and if so, for whose benefit? So far as creditors are concerned, a decided majority of the authorities affirm that the creditors have no right to seize upon the homestead, even after a divorce, as long as the owner is the head of a family and continues with his family to use it as his home. Where the wife obtains a divorce, and the children are awarded to her, she, in Illinois, is regarded as the head of the family, and as such is entitled to the benefit of the homestead. But it seems that the husband, if continuing in possession of the homestead, is still entitled to all

Estate of Delaney, 37 Cal. 176; Rich v. Tubbs, 41 Cal. 36.

* Dodds v. Dodds, 26 Iowa, 311; Hoffman v. Newhaus, 30 Tex. 633; Nicholas v. Purczell, 21 Iowa, 265.

*Blue r. Blue, 38 Ill. 19; Redfern v. Redfern, 38 Ill. 509; Byers v. Byers, 21 Iowa,

268.

+ Vanzant v. Vanzant, 23 Ill. 536; Bonnell v. Smith, 53 Ill. 383. See also Tiemann r. Tiemann, 34 Tex. 524.

the protection of the homestead act. In discussing this question, the Supreme Court of Iowa, quite recently, said: "It is true his divorced wife was awarded the custody of the only child, and the Court decreed that she should maintain it without charge to the defendant. But this decree does not exonerate him from liability to support the child, in the event of the inability of the mother to do so. It seems fully to accord with the provisions of the homestead law that the exemption should last as long as his liability to support exists, provided he continue in actual occupation of the property. Besides, the provisions of the homestead law are intended for the benefit of the children as well as of the parents. It does not accord with the spirit of the humane provisions of the statute, that the divorcing of the wife and awarding to her of the children, should deprive them of all interest in the homestead property." In the States where by law the dedication of the premises as a homestead changes the tenure by which the land is held, the question must, it would seem, frequently arise as to the effect of a divorce upon the joint-tenancy by which the homestead had been held. Do the premises revert to their former condition as to title? If before the separate property of one of the spouses, do they return to that state? or do they continue as joint property and become liable to partition between the former consorts? If the premises were community property, and no disposition is made of them in the decree, are they still a homestead? and if so, whose? The Supreme Court of the State of California has very recently considered the effect of a decree of divorce, and has determined that when accompanied by a partition of the property, it destroys the homestead character as effectually as a declaration of abandonment could do, if duly executed by both parties. This decision seems to be in direct conflict with the adjudications made in other States, and already cited and referred to in this section, in so far as it declares that the divorce renders the property at once liable to be seized upon execution. But, so far as it determines the effect of the divorce upon the joint-tenancy, this decision is, as far as we can ascertain, the only authority bearing upon the subject.

Woods v. Davis, 34 Iowa, 265. See to same effect Doyle v. Coburn, 6 Allen, 73.

We therefore regard it as sufficiently novel and important to justify its insertion in full in this place. It is as follows: "Block No. 127, in the town of Santa Barbara, which includes the premises in controversy, became in 1871 the homestead of the plaintiff and his wife, and so continued up to the time when they were divorced, by a decree of the District Court, in July, 1873. The decree directed the homestead property to be equally divided between the husband and wife, and the Commissioners having made and reported a partition, the Court confirmed the same, and adjudged that the respective portions allotted to each be held by them respectively, free and clear of all claims by or on the part of the other, the property in controversy being allotted to the plaintiff. Prior to the divorce, Chalfant, one of the defendants, recovered a judgment against the plaintiff in this action, and, after the decree of divorce was rendered, caused the premises in controversy to be levied upon under an execution issued on his judgment. The question presented is whether the premises in controversy remained the homestead of the plaintiff after they were allotted to him by the decree of divorce. The decree severed the sort of joint-tenancy of the parties in the homestead premises, which had been created by the homestead declaration, the residence of the parties, etc., under the provisions of the homestead act. It also destroyed the right of survivorship. The joint deed of both parties is no longer essential for the alienation or abandonment of any portion of the premises. The family, for whose benefit the provisions of the homestead act were mainly designed, was severed by the decree, and neither the husband nor the wife is entitled to reside on that portion of the homestead premises which was allotted to the other. All the principal qualities of the homestead estate, except that of liability for debts, etc., having been destroyed by the decree, the latter, in our opinion, was also destroyed. The decree was as effectual in its results as would have been a declaration of abandonment. It results from these views that the portion of the property which was allotted to the plaintiff was liable to execution for the payment of his debts.." But it is evident that in this

1 Shoemake v. Chalfant, filed March 18, 1874.

decision much stress is laid upon the fact that the decree had directed a partition of the property, and that this direction had been fully executed by allotting a specified part of the homestead to each of the late spouses. Had no such partition been made, both husband and wife would still have been entitled to occupy every part of the homestead premises, their joint deed would still have been requisite to transfer the title thereto in severalty; and it is possible that with these circumstances in view, the Court would have reached a different conclusion as to the liability of the lands to seizure under execution. This opinion contains the general statement that the decree severed the joint-tenancy. But whether this severance was produced by that portion of the decree destroying the marital relations of the parties, or by the portion allotting to each a parcel of the land to be held in severalty, does not clearly appear in the opinion. However, as this latter part of the decree, especially when carried into effect by an actual partition, was sufficient to transform the cotenancy into two estates in severalty, it is most probable that the general language employed by the Court was not designed as an expression of its opinion upon the effect of a divorce upon the joint-tenancy formerly existing between the spouses, unless the decree of divorce was followed by a partition of the homestead property.

2 62. Survivorship is the grand incident of joint-tenancy. In most of the States, as we have seen, the homestead is not a new estate. It does not change the title, but merely subordinates it to the interests of the family. In these States, as the title during the life of the claimant was not altered by the homestead law, so, after his death, it descends to his heirs as it would have done independent of its homestead character. But though thus descending to the heirs, it is held by them, as it was held by their ancestor, subject to the homestead right of the wife and minor children.' In some of the States, the wife, or the wife and children, upon the decease of the claimant, become the absolute owners of the

Size v. Size, 24 Iowa, 580; Meader ". Place, 43 N. H. 307; Meyer v. Meyer, 23 Iowa, 359; Bassett v. Messner, 30 Tex. 604; Cotton v. Wood, 25 Iowa, 43; Hamblin v. Warnecke, 31 Tex. 91; Burns v. Keas, 21 Iowa, 257.

homestead.' But this is not the result of the right of survivorship, but of provisions regulating the descent of the claimant's estate. But where, as in California, Idaho, and Nevada, a homestead is a joint-tenancy, of which husband and wife are the cotenants, the doctrine of survivorship is given its full effect, and the homestead vests fully and absolutely in the survivor. As in the case of joint-tenancy at common law, the title of the survivor is paramount to the claims of the children and other heirs of the deceased.2 This feature of the homestead law seems well calculated to thwart a portion of the design of every claimant in filing his or her declaration of homestead. This design is as much to secure a home for the children as for the parents. But when either parent dies, and the children are, more than ever before, in need of the advantages of home, the principle of survivorship leaves them no interest in the homestead, and makes them mere tenants by sufferance where they ought to be claimants by right.

1 See Comp. Laws Kansas, p. 392, sec. 2.

* Wixom's Estate, 35 Cal. 320; Rich v. Tubbs, 41 Cal. 34.