dissenting:
I am unable to concur with the majority of the court in the decision of this case. In my judgment, when Mrs. Plummer conveyed the property and abandoned it, all the rights she had therein terminated. The homestead rights of a widow, after the death of a husband, are governed and controled by sec. 2, chap. 52, Rev. Stat. of 1874, p. 497, which declares: “ Such exemption shall continue after the death of such householder for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead.”
Here is a plain provision of the statute, which confers a homestead exemption upon a widow so long as she occupies the premises, but no longer; and it seems clear that when Mrs. Plummer ceased to occupy the property, and conveyed it to a stranger, the fee and right of possession passed eo instanti to the devisee. Had the legislature intended that a homestead exemption of this character might be conveyed, doubtless express authority would have been given for this purpose.
Section 6, of the Homestead act, can have no application to a case of this character. That section, relates solely to a case where the fee and the homestead are united in one and the same person. Had the fee and homestead both been united in Mrs. Plummer, then her deed would have passed the estate, but such was not the case. She had merely a homestead exemption, which, conferred upon her the right of occupancy, so long as she might live, but when she ceased to occupy the property, all her rights therein terminated, and the property passed to the devisee unincumbered.
Mr. Justice Sheldon concurs in this dissenting opinion.