This is an action to determine the homestead right to lots five and six, in block five, in the original plat of the town, now the village, of Medina, in Stutsman county, North Dakota, and declare the same free from an attachment and judgment lien obtained against the plaintiff, by the defendant.
The case was tried to the court, and upon findings of fact and conclusions of law favorable to the plaintiff, judgment was duly entered adjudging the plaintiff to be the absolute owner of said property, which in area is less than three acres, and in value, does not exceed $900, and which has been for fifteen years last past, the homestead of the plaintiff, and that the judgment and attachment are not liens against said premises so long as plaintiff's homestead right continues to exist.
The defendant appeals to this court for a trial de novo. It is the *Page 303 contention of the defendant, first, that the plaintiff is a single man, a widower with no dependents, that he does not occupy the premises claimed as a homestead, and is therefore not entitled to a homestead. Second, that if he was entitled to a homestead on the death of his wife, the homestead has been abandoned. There is no dispute in the evidence, it appears clearly therefrom, that the plaintiff is the owner of the property and that it was occupied as a homestead by the plaintiff and his wife for a period of about fifteen years.
In 1924 the plaintiff's wife died, and at the time of the trial of this action in December, 1925, the plaintiff was 83 years old. He had no other property and no other source of income; he was in poor health, unable to work, and take care of himself, on account of his physical ailments, extreme age, and childishness. The house was rented by his son-in-law for $10 a month and the plaintiff was taken to the home of his son-in-law Jacob Rembold. What furniture was in the house, with the exception of one old stove was sold at public auction without consulting the plaintiff, but most of the proceeds were turned over to him.
The trial court found that the plaintiff had not abandoned his homestead and it is our opinion that the evidence justifies the finding. It is true that the plaintiff has not lived in the house since his wife died, that he has continuously lived with one or the other of his sons-in-law since his wife's death, but such residence was not voluntary. He lived with his sons-in-law because of absolute necessity. Suppose it had been necessary to take him to a hospital for treatment, and he was necessarily detained there for a long time, for the proper treatment of his physical infirmities, could it be said that that was an abandonment of his homestead right, and if that would not be an abondonment, it cannot be said, that the taking of this old man to the home of his son-in-law for the purpose of taking care of him, when he was not able to take care of himself, was an abandonment of his homestead right.
In the case of O'Hare v. Bismarck Bank, 45 N.D. 641, 178 N.W. 1017, relied upon by the defendant, this court held: that there had been an abandonment of the homestead. It does not appear in that case, that it was necessary for the homestead claimant to leave the homestead dwelling on account of her incapacity to take care of herself, but on the contrary, a majority of the court were of the opinion that she without cause voluntarily abandoned her homestead. In the case at bar, it appears *Page 304 clearly from the evidence that the removal of the plaintiff to the home of his son-in-law was an absolute necessity, and not a voluntary act upon the part of the plaintiff.
It is the contention of the defendant that the plaintiff cannot claim a homestead right, under § 5627 Comp. Laws, 1913, for the reason, that the title to this property was in the plaintiff's name, when his wife died, and that said section applies only when the title is in the name of the person who dies, and in such case the homestead shall survive and descend to the surviving husband or wife for life, that is, if this property had belonged to the plaintiff's wife he would have a homestead interest in it, but since it belonged to the plaintiff he has no homestead, although it was the homestead of the plaintiff and his wife prior to his wife's death.
In the case of Healy v. Bismarck Bank, 30 N.D. 628, 153 N.W. 392, this court held — that "it is immaterial whether the title to the property which is used as a homestead, is in the name of the wife or in that of the husband, and the property which was held in the name of the wife, but which was occupied as a home may be claimed by the wife after the death of her husband as a homestead."
In the case of Bremseth v. Olson, 16 N.D. 242, 13 L.R.A.(N.S.) 170, 112 N.W. 1056, 14 Ann. Cas. 1155, it was claimed, that the husband was not entitled to a homestead for the reason, that the title was in the name of his deceased wife, and this court said, "The fact that the legal title to this property was in the name of Mrs. Bremseth did not make it any the less the homestead of Mr. Bremseth. . . . Respondents contention to the effect that the head of a family cannot claim such homestead unless he has the legal title is clearly unsound. . . . It is immaterial in whom the legal title is vested provided it is the home of the family." "It cannot possibly concern the creditor whether the title is in the husband or wife."
In O'Hare v. Bismarck Bank, 45 N.D. 644, 178 N.W. 1018, this court said: "When the surviving wife is the owner in fee of the homestead, her title and interest is not in any manner affected by the death of her husband. The probate court had no jurisdiction to set off or in any manner interfere with her homestead."
Section 5627, is intended to preserve the homestead right when the title thereto is in the deceased husband or wife. The survivor does not *Page 305 need that protection if he has the title. In such case he has not a life interest in the property as provided in section 5627, but he is the owner in fee, and the homestead status having been established during his married life, it continues to exist after the death of his wife, unless voluntarily abandoned. But if the husband or wife who holds the legal title dies, the creditors cannot touch the homestead for in such case under section 5627, supra, the homestead right survives, and descends to the surviving husband or wife for life, and to the children until the youngest child becomes of age. It seems to be the intent of the law to protect the homestead right against every contingency.
Under § 5629, Comp. Laws, 1913, if the homestead has not been declared before the death of the owner, the county court must ascertain and set off the homestead to the surviving husband or wife, or minor child, or children. Under section 5606, it may be selected from the separate property of the husband or wife, or by a single man, if he is the head of a family. It cannot be conveyed or incumbered except by both husband and wife signing and acknowledging the same instrument. Section 5608. The will of a testator is subject to it. Section 5632. The real property subjected to the homestead may descend or be distributed to the surviving husband or wife, or to the decedent's heirs in the direct descending line free of the decedent's debts. Section 5631. If sold the proceeds are exempt. Section 5620. Sexton v. Sutherland, 37 N.D. 506, 164 N.W. 278; Cullen v. Sullivan,51 N.D. 384, 199 N.W. 760.
The homestead estate is for the protection of the family and when once established it continues to exist after the death of the husband or wife for the benefit of the surviving husband or wife or minor children, as said by the Massachusetts court in Doyle v. Coburn, 6 Allen, 71.
"Although a homestead cannot be acquired except by a householder having a family, yet, when once acquired and still occupied by him, it has been held not to be defeated or lost by the death or absence of his wife and children. . . . Any other construction would render a husband who has been deprived of his family by accident or disease or by desertion without any fault of his liable to be instantly turned out of his homestead by his creditors." Silloway v. Brown, 12 Allen, 34. See also Weaver v. First Nat. Bank, 16 L.R.A.(N.S.) 110, and note (76 Kan. 540, 123 Am. St. Rep. 155, 94 P. 273); Dougherty v. White, *Page 306 112 Neb. 675, 36 A.L.R. 425, 200 N.W. 884; Tomlinson v. Kandiyohi County Bank, 162 Minn. 230, 202 N.W. 494; 13 R.C.L. pp. 666, et seq.; 29 C.J. p. 791.
The property involved in this action is the homestead of the plaintiff, and the judgment is affirmed.
BIRDZELL, Ch. J., and NUESSLE and CHRISTIANSON, JJ., concur.
BURR, J., did not participate; Honorable C.W. BUTTZ, Judge of the Second Judicial District, sitting in his stead.