Holmes v. Nichols

• Decision Date: 01 April 1902
• Citation: 93 Mo. App. 513,67 S.W. 722
• Court: Missouri Court of Appeals
• Parties: HOLMES et al. v. NICHOLS et al.<SMALL><SUP>1</SUP></SMALL>

67 S.W. 722

93 Mo. A. 513

HOLMES et al. v. NICHOLS et al.¹

Court of Appeals of St. Louis, Missouri.

April 1, 1902.

HOMESTEAD — ABANDONMENT — HEAD OF FAMILY.

1. Where a widow continued to live on a homestead until 1894, and subsequently sold her household goods, except enough to furnish a room in a house of a child contiguous to the homestead, and one of her sons lived on it for several years, paying her part of the proceeds, and she lived with him part of the time, and testified that she regarded it as her home, and always intended going back there, and there was no other evidence of abandonment, the homestead was not subject to execution.

2. The loss of the members of one's family does not terminate a homestead right.

Appeal from circuit court, Lincoln county; E. M. Hughes, Judge.

Action by C. A. Holmes & Co. against Sarah A. Nichols and others. There was a judgment for plaintiffs, and from an order granting a motion to quash a levy of execution, plaintiffs appeal. Affirmed.

Norton, Avery & Young, for appellants. Martin & Woolfolk, for respondents.

GOODE, J.

An execution was levied upon a tract of land in Lincoln county, of 160 acres, on a judgment against the respondent Sarah A. Nichols, which she claimed as a homestead, and also a personal exemption in said land, or its proceeds, to the value of $300; and on her motion, and the testimony adduced in support thereof, the circuit court quashed the levy of said execution.

The land was conveyed to Chester H. Nichols in 1846, and he and Sarah A. Nichols were married in 1847. They moved on this land, and lived there continuously until his death, in 1872. When he died they had eight children living; the oldest being of age, and the youngest three years old. The widow continued to live on this land with one or more of her children until 1894, at which time the youngest married. She afterwards sold her personal property, except household goods sufficient to furnish one room, which she did furnish in the home of one of her children, who lives on 10 acres of land set apart to him, contiguous to the 160-acre tract.

The contention of appellants is twofold: That Mrs. Nichols is not the head of a family at the present time, and that she had abandoned her homestead prior to the levy of the execution. As to her being the head of a family, the evidence shows she has taken care of some of her children ever since her husband's death until December, 1900, at which time one of her daughters, for whom she had...