The separate deed of the husband, and the separate deed of the wife, are alike ineffectual to pass the homestead right. By the plain terms of the statute, neither can have any effect upon it. It seems to follow that the separate deeds of both must be equally ineffectual. The statute created a new and somewhat peculiar estate, — an inchoate right in which the wife and minor children, as well as the husband, have an interest. It provides the exact mode in which that right may *Page 34 be released or conveyed. In case the wife be dead, and there are minor children, a deed of the father is of no force without the consent of the judge of probate. It was doubtless thought necessary to guard thus carefully the mode of conveying away the right, in order to secure fully the beneficial purposes of the act. I do not think it is within the power of the court to hold that any mode of conveyance, different from that required by the act, is effectual, either by way of estoppel or otherwise. Our cases, where it has been held that a release by the wife of her right of dower, by a separate deed executed subsequently to the deed of her husband cannot govern this case, because of the clear and unequivocal terms of the statute prescribing the only way in which the homestead right can be conveyed. Whether the cases in reference to the release of dower stand upon satisfactory legal grounds, we need not inquire.
Case discharged.