dissenting:
In my opinion no homestead having been assigned to Mrs. Garwood at the time she made the deed to her daughter she had no estate that she could convey, but her homestead estate could be released to the owner of the fee. (Best v. Jenks, 123 Ill. 447.) The grantee was the owner of the undivided one-fifth of the premises in fee. I do not agree with the opinion of the court that where the value-of the whole premises in which the homestead estate exists does not exceed $1000 at the time the estate of homestead accrues, “the "limits of the estate are already definitely fixed, and neither the widow nor heirs could have an allotment out of the premises, * * * .and she may avail herself of her rights without any proceeding for allotment or setting off of the homestead.” As I understand the law, assignment of the homestead in a proceeding for that purpose is the only method of definitely fixing its limits. A bill for that purpose may be maintained either by the widow or the heirs, and when the assignment is made it is based on the valuation of the premises at the time of assignment, without regard to the value of the premises at the time the homestead estate accrued. (Anderson v. Smith, 159 Ill. 93; Jespersen v. Mech, 213 Ill. 488.) But the court holds this rule does not apply if the entire homestead premises did not exceed $1000 in value when the right accrued to have the homestead allotted. Who is to determine whether the premises exceed in value $1000, and how is it to be determined except by a proceeding to assign the homestead ? If the law is as stated in the opinion of the court, a widow entitled to an estate of homestead, if she is of the opinion the premises are worth less than $1000, can take the hazard of acting upon her opinion and not asking to have her homestead allotted. If afterwards the premises greatly increase in value and the heirs file a bill to assign homestead, and the proof shows the premises were worth any appreciable sum above $1000 when the homestead estate vested, it must be assigned on the basis of the value of the premises at the time of the assignment. If the widow does not choose to take that risk but files the bill herself, and the proof shows the premises were worth not exceeding $1000 when the homestead accrued, her bill would have to be dismissed at her costs. In White v. Plummer, 96 Ill. 394, it was held that where the homestead has been assigned and set apart to the widow she can convey or lease it during her life. It can readily be seen that it would be difficult for her to find a purchaser when the estate had not been allotted and set off, unless, possibly, where the value of the premises was so much below $1000 that there could be no dispute about it. In Jespersen v. Mech, supra, the homestead premises were worth more than $1000 when the homestead estate accrued but had decreased in value at the time of its assignment. In that case the court referred to Anderson v. Smith, supra, where the premises had increased in value after the homestead estate vested and before it was assigned, and said the rule requiring the assignment to be made on the basis of value at the time of allotment could work no hardship to the owner of the homestead estate or the owners of the fee, because either of them had a right to have the homestead' assigned at any time after it accrued. I think the rule should be applied in the assignment of homestead in all cases, without regard to what the value of the premises may have been when the estate accrued.