Declarations by Both Husband and Wife
The fact that both husband and wife declared the homestead (while only one at the time was permitted to do so) would not necessarily result in the homestead declaration being a nullity. Our court has never addressed the issue straight on, and its answer is not certain. In fact, our court skirted the issue in Atlantic Savings Bank v. Metropolitan Bank and Trust Company, 9 Mass.App.Ct. 286, 400 N.E.2d 1290 (1980). The Supreme Judicial Court, however, addressed the question straight-on in a decision which responded to a bankruptcy court petition for the answer to a certified question. In Dwyer v. Cempellin, 424 Mass. 26, 673 N.E.2d 863 (1996), where a husband and wife filed a joint declaration of homestead with the husband signing first the court said:
From the language [of the statue] we infer that, if more than one owner claims an exemption in the same residence, only the first to record a valid declaration of homestead would receive homestead protection. Any subsequent recording would be entirely ineffective without a release of the first homestead claim. However, nowhere does the statute state that a declaration of homestead signed by two persons in invalid. (Emphasis added.)
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The homestead statute does not state that a second signature on the declaration [of homestead] renders the homestead claim invalid. In construing the homestead exemption, we think that we should apply the rule of liberal construction. We conclude that the debtors' declaration of homestead is valid under [the statute], but only as to the person whose signature comes first, in this case [the husband. The wife's] signature is simply a nullity.
The Dwyer case thereby clarified the situation where there are two separate homesteads or one joint homestead.