In Re Estate of Carraghar

I concur, but solely on the ground that the question is now determined by the previous decisions of this court. If it were not for those decisions, I believe the rule should be that a homestead may be imposed in the instances provided by the statute regardless of the character of the title of the homestead claimant or his or her spouse, the homestead, of course, affecting only the interests of the claimant or spouse, whatever those interests may be. The only requirement of the statute in this respect is that the claimant be residing upon the premises, and to require more than this and make the validity of the homestead dependent upon the character of the interests affected is without statutory warrant and contrary to the object of the statute. The injustice, I think, is manifest in the present case. It is now too late, however, for this court to reverse its previous decisions, for such reversal would necessarily be retroactive in effect, and would destroy interests and rights acquired in reliance upon the existing decisions. It is hardly necessary to say that this objection would not lie to a change made by the legislature which, of course, would operate only in futuro. *Page 22