¶1delivered the opinion of the Court:
¶2The only question presented by the assignments of error is, whether the court correctly decreed that appellee was entitled to homestead in the premises in question, with the right to re-enter and enjoy the same, as against appellant. No cross-errors having been assigned, the question discussed by counsel as to the validity of the conveyance of the fee is not before us.
¶3If it be conceded that the deed from the husband, individually, to the wife, is, under the statute, as construed in Kitterlin v. Milwaukee Mechanics’ Mutual Ins. Co. 134 Ill. 647, void, it does not follow that the decree finding the husband entitled to homestead is correct, under the facts of this case. It was there held, that if the value of the property in which the homestead estate existed, was, at the time of the conveyance, less than $1000, a conveyance by the husband to the wife was ineffectual to pass any title or interest in the property. (See, also, Cannon v. McMurray, 2 Allen, 202; Castle v. Palmer, 6 id. 403.) Nor is it necessary to discuss or determine whether, under section 4 of the statute, the possession may be abandoned or given to the wife pursuant to his deed to her, so as to operate as a conveyance or release of his homestead, for it can not be contended that the abandonment, in this case, of the premises by the husband, was in pursuance “of the conveyance.” The testimony of both parties repels such presumption. For practically seven years after the making of the deed the husband and wife lived together, as they had done before, in the homestead, the husband remaining the head of the family.
¶4By section 2 of the statute (chap. 52) it is provided that the homestead exemption “shall continue after the death of such householder, for the benefit of the husband or wife surviving, … 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.” By section 1 of the act an estate of homestead is created, of the value of $1000, in the farm or lot of land, and buildings thereon, owned or rightly possessed and occupied by every householder having a family. Since the passage of the present statute the homestead is an estate in land, vested in the person designated by law, and passes in the mode provided by the statute. (Eldridge v. Pierce, 90 Ill. 474; Browning v. Harris, 99 id. 456; Kitterlin v. Insurance Co. supra.) And under the present statute, by virtue of the provisions of section 2, upon the death of the householder in whom the homestead is vested the estate passes to the surviving husband or wife, for his or her benefit, and that of the children, until the youngest thereof arrives at the age of twenty-one years. (Capek v. Kropik; 129 Ill. 509; Kingman v. Higgins, 100 id. 319; Merritt v. Merritt, 97 id. 243.) And so, under the latter clause of the section, if the husband or wife shall desert his or her family, the estate passes to and continues in favor of the one occupying the premises as a residence.
¶5. In this case, the parties continued to occupy the premises as a homestead until in May, 1888, when, it is conceded, the husband left the wife in occupation of the premises, went away from her, and has never since returned or contributed to her support. When he separated from her, he announced, in effect, that the separation was permanent, and that he would live with her no more. Some time after the separation the priest in charge of the church to which they severally belonged, on various occasions endeavored to induce him to return, live with and support his wife. This he absolutely and repeatedly refused to do. This witness testifies: “I told him I had heard he had left home,—left his wife and family. He said, yes, he had done so.” Upon being asked by witness if he intended this condition of things to stand, he said, yes, —that it was a final decision. Upon being admonished that it was not proper for him to live away from his family, and that he must go back, he said that he did not intend to do so. Being told that it was his duty to look after his wife and make a living for her, he replied that he gave her all that was there, (referring to the house, etc.); that she could have it all, and that was all he would ever do for her. Subsequently, the priest asked him if he had not changed his mind, and he said, no,—his decision was final.
¶6The preponderance of the evidence fairly shows that the-defendant drank intoxicating liquors to excess, and that the difficulty between him and his wife grew out of such excessive-use of intoxicants. But it is not material who may have been; at fault in the family trouble, so long as the separation was' the voluntary act of the husband, as this evidence clearly shows it was. It is true, he now testifies that he did not intend to abandon his homestead, but is absolutely silent to deny that he intended to desert and abandon his wife, and did so, leaving her in the actual occupancy of.the premises as a homestead. It is clear, we think,' that he deserted his wife and family, and that upon such desertion, the wife continuing to occupy the premises as a residence, the right of homestead was, by force of the statute, continued in her favor and for her benefit, — and this would be so, independently of whether the ownership of the land or lots remained in-the husband, or passed to the wife under the deed. If it should be contended that thereby the husband did not permanently lose his right df homestead, but that he might return, live with and support his family, and-regain the right to its possession and use, a sufficient answer would be, that during the five years intervening between the separation and the hearing of this cause the defendant had not once offered to return, had not contributed, or in anywise offered to contribute, to the support of his family, to the repair of the premises or to the payment of the taxes thereon, but had persistently carried out his determination to make the separation from his wife final and complete, and still continues the desertion of his family. It is difficult to perceive what standing he can have, in a court of equity, to be restored to his homestead estate in these premises, and no other relief was granted him by the decree.
¶7The parties had but one child, a daughter, who had married previously to the separation and gone away, so that at the time of the separation the wife was left alone in the house. She continued to occupy the same until the following fall, and then stored her household effects in the barn upon the premises and rented the premises out, that being necessary, as it seems, for her support and maintenance, the payment of taxes and preservation of the property. It is not shown that she ever intended to abandon the premises as a homestead, or that she acquired a permanent home elsewhere. Nor can it be said that her conduct is inconsistent with an intention to retain it. It is undoubtedly true that in order to impress the premises with the estate of homestead, originally, it is necessary that they should be occupied by the household as a homestead. (Kitchell v. Burgwin, 21 Ill. 40; Walter v. People, id. 178; Titman v. Moore, 43 id. 169 ; Potts v. Davenport, 79 id. 459.) And so of the continuance of the homestead for the benefit of the deserted wife or husband and family, the premises must be occupied by the householder, or them, at the time of such desertion. But a very different rule obtains as to the character of occupancy, or possession necessary to preserve the estate of homestead after it has attached to the premises. (Wright v. Dunning, 46 Ill. 271; Thompson on Homesteads, 242-254, et seq.; and cases supra.) We need not, however, enter upon a discussion of this branch of the case. No creditor or other person acquiring a right to or lien upon the premises, as creditor or otherwise, is here seeking to assert any such right or lien. The husband, who, by desertion of his wife and subsequent neglect of his duties, both in respect of his wife and of the property, had rendered the renting of the premises necessary to their preservation and to the support of his wife, brings this bill, and insists, in a court of equity, that the renting of the premises amounts to an abandonment by his wife of her right of homestead. Conceding that the estate created by the statute may be lost by abandonment, simply, we are of opinion that, under the authorities cited, the facts proved do not show an abandonment of the homestead by the wife. But if it was otherwise as to creditors seeking to assert liens against the premises, and it he further conceded that the right to possession and enjoyment of the homestead by the husband would revive upon abandonment of it by the deserted wife and family, the complainant can not be permitted, in a court of equity, to take advantage of that which was the result of his own wrongdoing, and was rendered necessary by his failure to perform his obligations to his wife and family.
¶8So much of the decree, therefore, as declared said deed, in so far as it purported to convey the homestead interest of appellee, null and void, and appellee entitled to re-enter and enjoy homestead rights in said premises, will be reversed.
¶9Decree reversed in part„