The opinion of the court was delivered by
Barrett, J.This is assumpsit for use and occupation. The alleged right to maintain this suit is grounded upon the right of the children of Dr. Jewett, under sec. 4, ch. 65 of the Comp. Stat.
*764Dr. Jewett died in 1853, leaving a second wife as widow, and eight children by a former wife. All of said children were of full age at the time of his death, and had resided away from the house and home of their father for some years — some of them in other states of the Union, and one of them in Turkey, in Asia. One of those children is the wife of the plaintiff, whose right he holds by virtue of the coverture. He holds the rights of the other children by conveyances made by them to him.
The plaintiff claims, that under the law before named, the children are entitled, in their several rights, equally with the widow, to the homestead; in other words, that the widow and the eight children are tenants in common, in equal individual right, of the premises set out as homestead; and in this suit, that he holds the right in common of eight-ninths, with its incidents of benefit and remedy.
The defendant had been in the occupancy of the premises from the decease of Dr. Jewett to the time when the homestead was set out, and had paid the stipulated rent to the plaintiff, as administrator of Dr. Jewett’s estate; at which time the administration was closed, and the plaintiff and the widow then came to stand upon their personal rights in the property of the deceased, as ascertained by the proper settlement of his estate. The plaintiff then notified the defendant that, if he remained in possession of the premisesj he must pay rent to the heirs. To this the defendant replied, that the widow claimed the right to control and occupy the homestead, and if he remained he should occupy under her.
The defendant made an arrangement with the widow to occupy the homestead, and occupied the same, paying rent to her from the time the same was set out, until the commencement of this suit, the widow claiming the right to use and occupy the same, as none of the children desired to reside there.
• The defendant paid the rent by boarding the widow, who continued to reside in the house with him during a portion of the time, and for the residue the defendant and his family boarded-with her.
On this state of facts, the plaintiff claims to recover rent for the occupancy of the premises, proportionate to the interest claimed to be held by him in the right of the said children of Dr. Jewett.
I. In order to maintain this form of action, the plaintiff must *765establish the existence of the relation of tenancy between himself and the defendant. 2 Aik. 252.
The mere fact of occupancy might create a presumption of such a relation, that would be prima facie sufficient. But such presumption may be encountered by evidence showing the contrary. In this case the fact is found, that the defendant expressly refused to hold the relation of tenant to the plaintiff, or to those in whose right the plaintiff stands, and that his possession was under the widow, to whom he had paid the rent. This would seem to be conclusive against the plaintiff’s right to maintain this suit, if he should be treated as standing on the rights of Dr. Jewett’s children, as he claims them to be, unaffected by the relation of tenancy, in common with the widow. Chit. on Cont. 374, 377 and notes (Ed. of 1855); Bull v. Cook, 4 Cow. 238.
II. If the defendant sustained, in any sense, the relation of tenant to the plaintiff, it was by reason of the demise of the widow, operating through the relation of tenancy in common, that existed between her and the plaintiff.
By asserting rights created by that demise, the plaintiff must be treated as ratifying it, and thus conceding the authority of the widow to make it upon the terms proved. When, therefore, those terms should have been complied with by the defendant, all right of claim and action against him would be at an end. The fact, then, that the defendant has fully paid the rent to the widow, in fulfilment of the contract under which he occupied, would be conclusive that there was no rent in arrear to be recovered by any body.
III. But the chief burden of the argument has been directed to another ground of defence, which merits the principal consideration in disposing of the case.
The theory of the plaintiff is, that the children become tenants in common with the widow in the homestead, and are entitled to assert, as against her, their respective several rights, and thus, to share with her in the joint use, and in the rents received, or to have partition, or to compel the tenant in possession to hold of them in respect to their several proportionate shares in the estate.
If the language of the statute is such as, upon settled principles and rtd.es of interpretation and construction, to render it necessary *766for us to sustain this view, we must do so, whatever inferences may-follow as to the wisdom or humanity manifested by such a law.
It will be useful to consider the subject in question, in its several provisions, for the purpose of deducing the true intent of the legislature as to the practical purpose to be accomplished by the pro. visions of the 4th section.
In the 1st section, it is provided that the homestead — defined to be “a dwelling-house, out-buildings and lands appurtenant” — and the yearly products thereof, shall be exempt from attachment on the debts of the owner.
The 2d section provides for setting out the homestead in case the real estate of the debtor, of which the homestead constitutes a part, shall be levied on by execution.
The 3d section provides for determining what personal property is of “ the yearly products of the homestead,” when the question is raised about it, on the levy of execution on the personal property of the debtor.
It will be noticed that these exceptions of homestead and its yearly products are made in favor of the housekeeper or head of a family. The purpose is obvious, viz: to secure to each housekeeper or head of a family a house for himself and his family.
This condition of things is to continue up to the time of the husband’s death, accompanied by the provision in the 5th section that such homestead shall not be alienated nor encumbered, except by the joint deed of the husband and wife, to be executed and acknowledged by her, with all the formalities that are requisite for a valid conveyance, by her, of real estate, to which she holds the title.
From this provision in the 5th section, the legislature would seem to have regarded the wife as being rather a substantive portion of a family, and having interests as such, both personally, and in her relation to the children, of whom she might be mother, either naturally or legally, which would render a house for shelter, and its appurtenances for convenience and income, somewhat important.
The subject standing thus under the 1st, 2nd, 3d, and 5th sections, while the husband should be living; the 3th section interposes to provide in respect to this subject of a homestead upon his, decease.
*767It may well be asked whether, in the probable, apprehension of the legislature, a home for the widow, if childless, or for the widow, with dependant children, was less worthy to be provided for and secured, than it would be for the same persons, while the husband and father was still living ? As indicating the proper answer to this inquiry, and vindicating the humanity of the legislature, it is worth while to notice the language with which that 4th section begins:
“ If' any such housekeeper or head of a family shall decease, leaving a widow his homestead, of the value aforesaid, shall wholly pass to his widow and children, if any there be, in due course of descent.”
The homestead — the dwelling-house, out-buildings and appurtenances, occupied by such housekeeper or head of a family as a homestead — shall thus pass. For what purpose ?
The plaintiff, by his claim in this case, answers: to be cut into nine distinct, equal fragments, eight of which shall be taken by himself in severalty, in the right of eight adult persons, who, for years, have lived in their own right, any where within the four quarters of the globe, and one of which shall be left to the widow, in severalty, though she may have no other place or means of shelter, habitation or support.
We cannot concur in this answer, unless we are compelled to, by the obvious force of the language, countervailing the only sensible or humane intention of the legislature.
It may, perhaps, be admitted, that the language of the 4th section of the statute might be construed to authorize such a result as the plaintiff seeks, if that was manifestly the intention of the legislature.
It may, at the same time, be admitted, that the provisions of that section are quite meagre and crude, both as indicating the precise intention of the legislature, as to the rights and interests of the persons to be benefited, and as furnishing a course of proceedure for ascertaining and administering those rights and interests according to such intention.
Yet, we think that the familiar doctrine, as to the power and duty of the court to modify, control and accommodate the terms of a statute so as to effectuate the obvious purpose to be served by it, *768will relieve us from any serious difficulty in holding, as we do hold in this case, that the widow has the right, under the law, to hold control and enjoy the homestead, as a home for herself, without restraint or abatement by any of the children of the deceased husband, who are not members of her family. We think the clear design of the law is to continue the homestead entire, as the home of the widow, or of the widow and children constituting the family at the decease of the husband, housekeeper or head of the family, and that no rights of the children become operative to sever or divert such homestead from full occupancy and enjoyment as the family home, so long as the widow, or widow and children, see fit to continue it as such family home. In other words, we think that the homestead continues to stand in the same relation to the family of the deceased for the purpose of a home and support, upon and after his decease, as it did before and up to the time of his decease.
When it shall cease to be used or needed as such home, it will be time for the children, and those standing in their rights, to interpose their several claims. Upon the happening of such event, the courts will render such aid as the cases, when they arise, may require, under the law.
In the present case, the plaintiff is not entitled to recover, and the judgment of the county court is affirmed.