The motion to dismiss was properly overruled. Upon an appeal from the probate court to the county court if the appeal is entered without giving to the appellee the requisite notice, the practice is not to dismiss the appeal, but to continue the case and give the notice.
Under the probate act of 1821 the appeal was taken to the supreme court instead of the county court, — as the supreme court then had appellate jurisdiction in trials of fact both from the county and probate courts ; but the provision, that the appellant should give the notice directed by the probate court, was substantially the same then as now. The decision in the case of Woodward v. Spear, 10 Vt. 420, is therefore an authority on this point. The practice then recognized has been followed ever since.
II. The intent of the homestead act is to create a home for the poor debtor and his family which shall not be liable for his debts, and which upon the death of the husband shall descend to the widow and minor children.
The spirit of the act and all its provisions indicate, that it Was intended that the husband should not have the power by will to devise it away from his wife and minor children.
I-Ie cannot alienate or mortgage it without the consent of the wife. G-. S. c. 68, § 10. If he die leaving a wife and children it shall vest in them free from his debts. It is not to be divided among his other heirs or go to pay his creditors. But the home is preserved for the family.
If the widow have dower, the value of her interest in the homestead is to be deducted from the dower. As the husband by will cannot defeat dower we may well consider that he should not be al*419lowed to defeat the homestead right which so much resembles dower. If a home is to be made for the family why should they be deprived of it at the very time when they may need it most — when the head of the family is taken away ? .If it is not to be kept for the humane purpose of providing for the widow and minor children, why should it not be appropriated to the purpose of paying honest creditors as well as leave it to the caprice of the husband to dispose of by will? Why should the husband be restrained from deeding or mortgaging it during his life and be permitted to will it away when he dies?
Upon the decease of Judge Meech we have no doubt Mrs. Meech was at liberty to renounce the provisions of the will and elect to have her homestead and her dower.
III. The bequests in the will were given to her expressly in lieu of dower and it is admitted that by taking them she renounces dower. But they are not devised by express words in lieu of homestead. The will says nothing of homestead. And here the main question in the case arises — are the bequests of the will such as legally operate to exclude Mrs. Meech from homestead in case she accept (as she has accepted) the bequests to her. Was it the intention of the testator that she should not have both ? If it were, then she must elect which she will have, or rather, having accepted the bequests of the will, she must be excluded from homestead.
1. In determining this question we must seek for the intent of the testator in the will and not dehors it.
2. The intent to exclude the widow from her legal right must dewrly appear ; if it be doubtful, she is not to be excluded. It is not necessary that this should appear in eaypress words. If the terms of the instrument clearly and plainly imply it — if there are provisions in the will which are inconsistent with the intent of allowing her homestead, then the court will find the intent to exclude.
These rules are well settled as the guides by which the court is led to determine when the widow shall be put to elect whether she will have her dower, or the bequests in the will. The same rules should apply in determining whether she shall have her homestead right by statute, or the benefit of the will, — dower and homestead are so much alike, — for the same general objects, — that no distinc*420tion can be made as to the rules applicable to them, when the question of election between them and a will arises.
The general subject as to this doctrine of election is well considered in Streatfield v. Streatfield, 1 Lead. Cas. in Eq. 283, and in the notes of the English and American editors thereto appended.
In Dodge v. Dodge, 22 Howard’s N. Y. Prac. 63, it is held, that when it clearly appears by the will that the testator, after making provision for the widow, has distributed the rest of his estate among 'the heirs, and that to allow the widow to take both dower and the bequests of the will would materially lessen the shares given to the heirs — then the intent of the testator not to give her both is held to be plainly manifested, and she shall be required to elect.
There the testator willed to his wife for life the homestead in New Hampshire — the rest of his real estate to his children, an annuity to his wife of $400. and made a charge upon shares of his real estate .given to two of his children, it was held she should elect — the ■charging her annuity upon the real estate devised to two of the heirs indicating such intent — and therein they would be injured.
Examining the provisions of the will we find that the four acres which include the family mansion and grounds are given to Mrs. Meech for life. Then a larger tract compidsing the four acres within its boundaries is devised in fee to Ezra Meech, with this clause appended to the description : “ Excepting from the lands herein devised to Ezra, the life estate which I have given to my wife, in about four acres thereof, and the house and buildings standing on the four acres.”
The house on the four acres was the homestead, from which the widow’s homestead must be taken, if she have any. If he intended Ezra to have all but Mrs. Meech’s life estate in it, and the language admits of no other construction, he could not have intended that she should have a piece severed to her in fee out of the four acres, of the value of $500. The homestead right is inconsistent with this plain provision of the will.
The setting out of such a little piece in fee from the house and grounds of such a mansion, and obliging his son to have a stranger introduced into a part of the old family mansion and grounds is plainly contradictory to what the testator intended in the division of *421his -property. He meant his widow to have the mansion and grounds for life; and after ■ her decease that Ezra should have the whole of it.
So he charged Ezra’s lands with the payment of $400. of the annuity given Mrs. Meech; and the other devisees with their proper proportions. He could not have intended Ezra’s share to be still further reduced by the value of the homestead. See 9 Barr. 456,
IY. It has been claimed that the referee has found the fact that Judge Meech intended that the bequests to her should be in lieu of .all other claims which she as his widow could have upon his estate, and that his finding should control. As the court came to the same-conclusion, the point is not material to the decision of the case ; but. we deem it proper to say that when parties present to the court an agreed statement of facts, a referee can only find such facts as are the legal result of the facts agreed upon, or as are naturally and legally deducible from them.
Judgment of the county court affirmed and decree of probate court reversed.