A homestead estate was, by force of St. 1855, c. 238, created in the real estate of Samuel Monk. That estate was, by the terms of that statute, “ to continue after the death of such householder, for the benefit of the widow and children of the deceased party, some one of them continuing to occupy such homestead, until the youngest child be twenty-one years of age, and until the death of the widow.” That a homestead, with all the privileges attached to such an estate, existed during the life of Samuel Monk, is not questioned. But the position taken by the respondent is, that such homestead right was. a mere extension of the existing statutes exempting property from levy and sale on execution; that such exemption terminated with the life of the husband, and, when there were no outstanding debts at the time of the decease of the husband, such homestead estate terminated, and the real estate was vested in the heirs subject only to the right of dower in the widow.
This position is directly at variance with the provisions of the statutes creating the homestead estate. Its existence is not made dependent upon the fact of the possessor being a man of wealth or poverty, of his having more or less acres, or many or no creditors. The legislature have seen fit to fix upon all estates owned and occupied as a residence on May 27th 1855, without any act of the owners, and since the passage of St. 1857, c. 298, have authorized the owners thereof, by a notice on record, to create, a homestead right entirely independent and irrespective of all rights of subsequent creditors, and all rights of heirs, under the statutes regulating the descent of intestate estates.
This homestead does not terminate at the death of the husband, but enures to the benefit of the widow during her life, by St. 1855, c. 238, and by St. 1857, c. 298, during her widowhood; and for the children, until the youngest shall arrive at the age of twenty-one years. It was competent for the legislature to provide that the claim of dower by the widow should operate as a bar to her further right of a homestead; but thev *148have not done so, and, under the existing statutes, we perceive no ground for sustaining the doctrine that such is the effect of enforcing her right of dower, or of her having received an allowance from the personal property by the judge of probate, or a distributive share in the personal assets, in the disposition of the. estate in the hands of the administrator.
The effect of the homestead acts of 1855, c. 238, and 1857, c. 298, is to give to the widow an estate additional to her other rights in the real and personal property of her deceased husband.
This petition was therefore properly granted by the judge of probate, under the provisions of St. 1857, c. 298, § 14.
Decree of judge of probate affirmed. *
A similar decision was made in Bristol County, October Term 1862, in tha ease of
Eliza B. Dwelly v. Stephen B. Gifford & another.
J. C. Blaisdell, for the petitioner.
W. C. Greene, for the respondents.