The tenant may well maintain her defence to the present action under her right of homestead, which was acquired under St. 1855, c. 238. The right accruing to her was one *78which she might, upon the death of her husband, continue to enjoy without any further proceedings on her part to have a homestead set out to her by the judge of probate, or other authority. Without expressing any opinion beyond the present case, we are satisfied that where the whole premises are of less value than eight hundred dollars the widow has no occasion to institute any proceedings to set out a homestead, if she was in, the occupation of the premises during the lifetime and at the time of the decease of her husband. The purpose of the statute was to continue to her a home for herself and children.
Those provisions of the General Statutes to which we have been referred have more particular reference to cases of horde. stead where the whole value of the premises exceeds eight hundred dollars. In such cases, proceedings for partition may be instituted by herself, or others interested in the same; but we are not prepared to say that in such cases she may not avail herself of her right to continue in the occupation of so much of the homestead as shall not exceed eight hundred dollars in value, until a partition and assignment to her have been made of her particular portion; but that question does not arise here, and we express no opinion upon it.
Judgment on the verdict for the tenant.