(dissenting). This is not a case in which the Probate Court has attempted to make a permanent division of real estate owned by husband and wife as tenants by the entirety or to compel its use as security. Coe v. Coe, 313 Mass. 232, 236. Dunnington v. Dunnington, 324 Mass. 610, 612. Gould v. Gould, 359 Mass. 29, 32. It has merely given the wife present possession of the marital home to use with her minor child whose custody she was granted. Indeed there is nothing in the decree which bars the husband’s exercise in good faith of his legal right to sell or lease his present interest in the tenancy by the entirety, and it is unnecessary to consider any rights that may arise under such circumstances. This case seems to me to be governed by the Gould case, supra, upholding a provision in a Probate Court decree which granted the use of various articles of personal property1 to the wife who had moved *326from the marital home and had custody of the children, while striking down a provision for the sale of the marital home and division of the proceeds. Both the home and the personal property are treated on the same footing, both in the opinion and in the briefs;2 the only distinction made is between use without disturbing title which the court permits, and an order for sale, which is forbidden. On the basis of that distinction the Probate Court in this case, it is submitted, properly ordered that the wife have the use of the marital home.
The Judicial Council in its unfavorable report on proposed legislation which is now G. L. c. 208, § 34B (see fn. 5 of the majority opinion) states that Probate Courts do not have such power and refers to the practice of accomplishing the same result by “advis[ing] the husband at a hearing that if he insists upon staying in the marital home, the judge will make an order requiring the husband to pay rent on suitable premises .to be occupied by the wife and children” (Forty-fifth Report of the Judicial Council, Pub. Doc. No. 144 of 1969, p. 51). The implication is that a support order for rent may be so high that the husband either prefers or is forced to permit the wife to remain and find other quarters for himself. This practice recognizes that where the wife is given custody of young or school age children it may be a real hardship to uproot them and that power is needed in the Probate Court to cope with this situation. The desirability of candor in the judicial process3 should persuade us, if at all possible under the statutes, that Probate Court judges should be permitted to exercise that power directly in appropriate circumstances. That power is, I believe, fairly to be found in the broad language of G. L. c. 209, § 32, which provides that “the probate court *327may . . . prohibit the husband or wife from imposing any restraint on the personal liberty of the other.. . and... may make further orders relative to the support of the wife and the care, custody and maintenance of their minor children” as well as in G. L. c. 209, § 37, which gives the Probate Court the power of the Superior Court found in G. L. c. 208, § 28, to “make such decree as it considers expedient relative to the care, custody and maintenance of their minor children ....” See G. L. c. 209, § 33, making G. L. c. 208, § 33, applicable to separate support proceedings. What the court said in the Gould case, supra, at 33 with reference to the award of the use of the personal property is applicable to the use of the marital home: “Award of use of such personal property is entirely consistent with the concept of ‘temporary support.’ Dun-nington v. Dunnington, supra. Power to make such an award permits a sensible solution to a practical problem, and serves the ‘broad equitable and humane considerations’ and the ‘principles of fair dealing between husband and wife’ which are properly considered in such a proceeding.”
The decree in the Gould case provides: “It is further decreed that the petitioner [wife] shall be allowed for use in her new apartment only necessary furniture and furnishings, silverware, kitchenware, towelling, bedding, carpets, curtains, drapes and any other furnishings now contained in the home place, which may be used in the new apartment. It is further decreed that she also may have the radio, television set, stereo and records for use in the new apartment.”
The trial judge who had before him, as did the Supreme Judicial Court, the bill of sale of the furniture (which the transcript indicates the husband paid for), treated it as owned by the husband. Otherwise, the decree giving her the “use” of it would be pointless.
“What is new in juristic thought to-day is chiefly the candor of its processes.” Cardozo, Address before the New York State Bar Association, 1932 New York State Bar Association Report, 263,298.