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The widow’s right

Life must have seemed awfully good to Nellie Philbrick in 1900.

Nellie.smShe was living then with her husband and their young daughter in what must have seemed to the 38-year-old Maine-born Nellie as the wild west, in what was then Custer County, Montana, on a farm that they owned subject to a mortgage.1

But by the 16th day of April, 1903, everything in Nellie’s life had changed.

In the summer of 1902, her husband Edwin C. Philbrick died.2 His will left her $3,000 “provided she receive and accept the same in lieu of her claims of dower in (his) said estate and in lieu of all claims by her of any kind whatsoever against (him) or (his) estate.”3

Everything else in his estate was set aside for their daughter, Lois Fae, and Nellie wasn’t even named as the child’s guardian. The guardian and executor of the estate was to be Charles Davis — another Maine native and farmer living nearby.4

Talk about upheaval. Even the name of the county she lived in had changed. Rosebud County had been carved out of Custer County in 1901.5

The will was admitted to probate and letters testamentary issued to Davis on 20 August 1902.6 Appraisers were appointed to value the estate later that month.7 And in September, Charles Davis was confirmed as the guardian of the little Philbrick girl.8

Now you have to think this didn’t sit well with Nellie. She wasn’t a flighty young thing, but a mature woman. And, to the degree the law allowed, she did ask for what she was due. In October, she succeeded in getting personal property set aside for her and her daughter’s use, free of the executor, as well as an allowance of $30.00 a month for support.9

And after Davis went to court asking for permission to sell the land Nellie and her daughter lived on, Nellie went in to court herself and said, in effect, “not so fast.” She asked the court for a homestead.10

A what?

A homestead?

We tend to think of homesteads as those big grants of land that came from the federal government to individuals under the Homestead Act of 1862.11

But that’s not all the term means in the law.

A homestead entitlement was also part and parcel of probate law in much of the United States, and particularly in the western states. A widow and minor children were first entitled to stay in their home temporarily,12 and then to have a permanent homestead set aside, separate and apart from any other entitlement under the estate.13

And Montana law at the time specifically allowed for that homestead:

Upon the return of the inventory, or at any subsequent time during the administration, the court or judge may, on his own motion, or on petition therefor, set apart for the use of the surviving husband or wife, or, in case of his or her death, to the minor children of the decedent, all the property exempt from execution, including the homestead, selected, designated and recorded; if no homestead has been selected, designated and recorded, the court or judge must select, designate, and set apart, and cause to be recorded, a homestead for the use of the husband or wife and the minor children; or if there be no surviving husband or wife, then for the use of the minor children in the manner provided in this chapter, out of the real estate belonging to the decedent.14

The law was mandatory: the court had to act. And the right of the widow was absolute: the only time she couldn’t get a homestead set aside out of her husband’s estate was if she already had one. And the right to a homestead even overrode any contrary provision in a will.15

In other words, in this one area of the law, the deck was stacked in Nellie’s favor.

And she won.

On the 11th of November 1903, the court entered an order setting aside a homestead for Nellie and her daughter — 161-15/100ths acres “hereafter to be the absolute property of said widow and minor child.”16

A homestead for Nellie…

… And an entitlement to be considered any time we come across a probate record.


  1. 1900 U.S. census, Custer County, Montana, population schedule, enumeration district (ED) 205, p. 217(B) (stamped), dwelling 15, family 15, Ed Philbrick household; digital image, ( : accessed 18 Mar 2014); citing National Archive microfilm publication T623, roll 910. Note that the child — a girl, Lois Fae — was enumerated as a boy, Louis.
  2. Rosebud County, Montana, Seventh District Court, Probate Journal 1: 42, In the Matter of the Estate of Edwin C. Philbrick, Deceased, Notice of Probate of Will, 20 July 1902; digital images, “Montana, Rosebud County Records,” FamilySearch ( : accessed 18 Mar 2014).
  3. Rosebud County, Montana, Will Book 1: 17-18, Will of Edwin C. Philbrick, 9 May 1901; digital images, “Montana, Rosebud County Records,” FamilySearch ( : accessed 18 Mar 2014).
  4. See 1900 U.S. census, Custer Co., Mont., pop. sched., ED 205, p. 219(A) (stamped), dwell. 32, fam. 34, Charles Davis.
  5. FamilySearch Research Wiki (, “Rosebud County, Montana,” rev. 26 Feb 2014.
  6. Rosebud County, Montana, Seventh District Court, Probate Guardianship Proceedings Book 1: 58-59, In the Matter of the Estate of E.C. Philbrick, Deceased, Order Admitting Will to Probate and Appointing Executor, 20 Aug 1902; digital images, “Montana, Rosebud County Records,” FamilySearch ( : accessed 18 Mar 2014).
  7. Ibid., Probate Guard. Proc. Book 1: 62, Order Appointing Appraisers, 28 Aug 1902.
  8. Ibid., Probate Guardianship Proceedings Book 1: 64-65, Order Confirming Testamentary Guardianship, 22 Sep 1902.
  9. Ibid., Probate Guard. Proc. Book 1: 72, Order Setting Apart Exempt Property and Making Family Allowance, 11 Oct 1902.
  10. Rosebud County, Montana, Seventh District Court, Probate Petition Book 1: 100-102, In the Matter of the Estate of E.C. Philbrick, Deceased, Petition for Decree, 16 April 1903; digital images, “Montana, Rosebud County Records,” FamilySearch ( : accessed 18 Mar 2014).
  11. “An Act to secure Homesteads to actual Settlers on the Public Domain,” Act of 20 May 1862, P.L. 37-64, 12 Stat. 392.
  12. See generally Peter V. Ross, Probate Law and Practice, 2 vols. (San Francisco: Bancroft-Whitney Co., 1908), I: 458-462; digital images, Google Books ( : accessed 18 Mar 2014).
  13. Ibid., I: 462-466.
  14. Mont. C. C. P. §2581, set out in ibid., I: 464.
  15. Ibid., I: 468-473.
  16. Probate Guard. Proc. Book 1: 115, order signed 10 Nov 1903, filed 11 Nov 1903.
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