delivered the opinion of the Court:
It is objected that the heirs of John G. Higgins, deceased, were not competent witnesses, and their evidence was improperly heard on the trial below. We are unable to appreciate the objection urged. It is true, they sue to have a cloud upon their homestead title removed, and they are heirs, and claim the homestead as heirs of their father; but all of the material portion of the evidence of those who testify relates to circumstances and facts which occurred after the death of their father. It is true, they state that their father occupied the premises as a homestead before and at the time of his death; but if this evidence were rejected, there is an abundance of other evidence to prove that fact beyond all cavil, and on a hearing on a bill in equity the court only considers such evidence as is competent. As to what they said in reference to the conversation between their father and the sheriff, that was wholly immaterial, as the homestead estate could not be released in that manner. The fourth section of the Exemption act provides that there shall be no release or waiver unless it be in writing, subscribed by the householder, etc., and acknowledged, or possession shall be abandoned or surrendered to a purchaser under a conveyance. There is not, ppr can there be, the slightest pretence that Higgins,' in his lifetime, did any of these acts, and without one of them there was no waiver of the homestead. This provision is so plain that it must have been overlooked, or such a defence would not have been urged in the court below.
It is next urged that the evidence fails to establish a homestead estate in Higgins in his lifetime, and consequently his children can claim none. The evidence abundantly, shows that he occupied the premises; that he was married, had children, and that he lived with them on the premises as the head of the family, and the land was not of the value of $1000. He died whilst living on the place, and had never abandoned it. It is difficult to perceive that a clearer case could be made. The proof seems to bring the case strictly within every requirement of the statute.1 A homestead estate is clearly made out in him.
The first section of the Exemption act creates the estate of homestead, and provides for its exemption from forced sale. The second section provides that the exemption shall continue after the death of the householder, for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead, and of the children until the youngest child becomes twenty-one years of age; and in case the husband or wife shall desert his or her family, the exemption shall continue in favor of the one occupying the premises as a resident. Thus, it is seen that the father or mother might occupy the premises exempt from levy and sale, and in case of their death or desertion it is continued to the children until the youngest shall attain the age of twenty-one years.
The fourth section provides the manner of extinguishing the estate of homestead. It enacts that the waiver shall, to be operative, be in writing, subscribed by the householder and his or her wife or husband, if he or she have one, and acknowledged, etc., or possession abandoned or given pursuant to the conveyance, “or if the exemption is continued to the children, ” no waiver or release shall be valid “without the order of the court directing a release thereof. ” Here the exemption was continued to the appellees as the children of deceased. The only means, therefore, by which their right can be extinguished is by order of court, and no such order has been made.
Although it was held in White v. Plummer, 96 Ill. 394, that a widow holding the entire estate of homestead which had been set off to her, might release and transfer the estate to a third person, still she must be invested with and hold the estate when she makes the release. If she has previously lost the estate, by abandonment or otherwise, she has nothing to release. In this case the widow, soon after the death of her husband, abandoned the homestead, and went to her father’s, in a foreign county, taking her own child with her, and she intended to abandon the homestead permanently, and has never returned to live upon the premises. The husband died in January, 1878. When the widow removed to her father’s she left appellees in possession, and they have so remained ever since. The widow afterwards, on the 2d day of February, 1881, to release the homestead to Carrie Kingman, the purchaser under execution, quitclaimed the premises to her.
The question is then presented whether the widow had any interest in the estate of homestead to release. She had left, and continued absent for nearly two years, with the intention of permanently abandoning the homestead. This was, within the provisions of the second section of the act, an abandonment of the family, and by so doing, under the same section, the homestead estate devolved on and vested in the children of the deceased husband, who remained in possession. The right having vested in them, she having in law no power or control over the step-children, she did not have the slightest pretence of power to release or transfer their right therein. After it vested in the children their release could be had only by an order of a court of competent jurisdiction, as provided in the fourth section, and there is no pretence that there was any such order ever made requiring them to release their estate of homestead. Being the natural guardian of her own child she had its custody and control, and had the right to remove it permanently from the homestead, and thereby abandon all of its claim to the estate of homestead. She possessed that power to the same extent that the head of a family may remove his family from and abandon the homestead.
It is urged that the court below erred in permitting the evidence taken in the case before Lou Higgins was made a party defendant to be read in evidence on the hearing. Had her guardian ad litem or solicitor desired, the witnesses could have been cross-examined; but no application or effort was made for the purpose. Had such a cross-examination been applied for and refused by the court, or had the cross-examination been made on notice to the other parties, and the court had excluded the evidence, there would have been error; but neither was done. In the case of Bruner v. Battell, 83 Ill. 317, the bill was taken as confessed, and proof was made before the master, and subsequently defendant was permitted to answer, and the evidence so taken was permitted to be read on the hearing, and it was held not to be error.
It is claimed that if complainants are entitled to the benefits of the Homestead act, the infant child, Lou Higgins, is also entitled to such an interest therein. In the cases of Wright v. Dunning, 46 Ill. 271, Buck v. Conlogue, 49 id. 391, Clubb v. Wise, 64 id. 157, Shepard v. Brewer, 65 id. 385, and Brown v. Coon, 36 id. 243, it was held that the homestead may be abandoned, and although the statute has preserved the right to the wife and children at the death of the husband, still, the children living under the control of the widow, when she abandons the property and takes the children with her, their right is gone. Hence in this case, the mother having the right to control her child, when she permanently removed to another county, taking the child with her, she and the child lost all homestead rights in the premises, and the court did not err in refusing to decree that this child had homestead rights.
The rights of complainants depend on a different principle. The law does not impose on the step-mother the duty of supporting them, nor does it give her a right to them custody. In this case she abandoned both the premises and her husband’s children, hence her acts did not, nor could they, affect their rights of homestead. The statute conferred the right upon them all alike, and it provides that the exemption shall continue in favor of the surviving husband or wife so long as he or she shall occupy the homestead, and of the children until the youngest child becomes twenty-one years of age. Here the step-children took, as against creditors, the same rights as did the widow, and her abandonment of the homestead did not affect their rights any more than had one of the complainants become of age or abandoned the home- - stead. The right is vested in the widow and children alike, each taking the same right, but that of the children being liable to the control of the parent having custody and control of .them. Had the widow in this ease died at the time she abandoned the homestead and her step-children, no onej we apprehend, would have doubted the right of the children to occupy the homestead as against creditors, and her abandonment of them and the homestead had precisely the same effect.
There was, therefore, no error in decreeing the sale void and setting it aside, and confirming complainants in their right of homestead, especially as they continuously occupied the homestead from their father’s death.
The decree of the court below must be affirmed.
Decree affirmed.