Barbe v. Hyatt

Decision Date10 December 1892
PartiesP. W. BARBE v. W. S. HYATT, as Executor of the Estate of A. B. Hyatt, deceased
CourtKansas Supreme Court

Error from Labette District Court.

AT its February term, 1889, the district court reversed an order of the probate court directing the sale of certain real estate for the payment of debts of the decedent and the costs of administration. Plaintiff, Barbe, brings the case to this court. The facts appear in the opinion.

Judgment reversed and cause remanded.

Dobson McCune & Doggett, for plaintiff in error:

1. The widow and children of A. B. Hyatt could hold the homestead free from the payment of debts only so long as they occupied it as a homestead. Upon its abandonment as a homestead, it became subject to the payment of his debts as though it had never been a homestead. Dayton v. Donart, 22 Kan. 270. Stratton v. McCandless, 32 id. 512.

2. The character of the interest of the children in the 40 acres which have been abandoned as a homestead has not been changed by the partition suit. Tabler v. Wiseman, 2 Ohio St. 211; Cresley v. Waterworks, 8 P. 50; Davis v. Agnew, 2 S.W. 376; Dawson v. Lawrence, 13 Ohio 346; Freem. Judg., § 304; Wade v. Deray, 50 Cal. 376; Black, Judg., § 660.

3. Plaintiff in error is not estopped by the partition suit from asking for the application of this land to the payment of his judgment, as he was not a party to that suit. 15 Ohio St 350.

G. S King, for defendant in error:

The widow in this case having admittedly continued to occupy the homestead as her residence, after the death of her husband up to the time of her remarriage, and the rights of the adult children of the deceased to an interest in said homestead not depending on their residence or nonresidence thereon, and the question of abandonment, therefore, as contemplated by this court, not being involved herein, the case of Dayton v. Donart, 22 Kan. 256, cited and relied on by counsel for plaintiff in error, does not sustain their contention, but, on the contrary, by affirming the case of Vandiver v. Vandiver, 20 Kan. 501, supports the judgment of the district court in its affirmative answer to the legal question herein presented. See, also, Gatton v. Tolley, 22 Kan. 678; Hafer v. Hafer, 33 id. 449; same case, 36 id. 524; Vining v. Willis, 40 id. 609; White v. White, 41 id. 560; Brady v. Banta, 46 id. 131.

JOHNSTON, J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an appeal from an order of the probate court directing the sale of real property. A. B. Hyatt was the owner of a quarter section of farming land in Labette county, which was occupied by himself and family as a homestead. He died testate on July 17, 1887, and left surviving him a widow and several children, all of whom had reached majority, and were occupying homes of their own. By the terms of the will, there was devised to the widow such portion of the testate property as might be allowed by law, and to his son Sherman Hyatt the southwest 40 acres of the homestead. But the record fails to show what disposition was made of the remainder of the property. Claims were allowed against the estate to the amount of $ 612.13, and the personal property belonging to the estate was insufficient to pay the debts and costs of administration. The widow continued to occupy the farm as a homestead, and Sherman Hyatt, to whom the deceased had leased the farm on March 1, 1887, occupied a portion of the house on the real estate, and was in possession of the same as a tenant. On January 11, 1888, when the executor ascertained that the personal property was insufficient to pay the debts of the estate, he asked for authority to sell the southeast quarter of the homestead for the purpose of paying debts, and at a hearing had before the probate court on February 10, 1888, it was determined that the real estate was occupied as a homestead and could not be sold to pay the debts of' the estate. On January 28, 1888, a judgment was entered in an action brought by the widow of the deceased, partitioning the homestead, under which the widow was allotted the north half of the homestead, Sherman Hyatt was awarded the southwest quarter of the homestead, and the other 40 acres were allotted to the remaining heirs. After partition was made, the widow sold her portion and delivered the possession of the same to the purchaser. Sherman Hyatt resides upon the 40 acres allotted to him, and the other 40 acres remain unsold and unoccupied by anyone. On May 12, 1888, the claim of P. W. Barbe against the estate of A. B. Hyatt, deceased, was allowed by the probate court in the sum of $ 298, and on February 13, 1889, he instituted a proceeding in the probate court to obtain an order for the sale of the real estate to satisfy his claim. On January 29,...

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7 cases
  • In re Casey's Estate
    • United States
    • United States State Supreme Court of Kansas
    • March 6, 1943
    ... ... at bar, has also been definitely determined. Dayton v ... Donart, supra; Barbe v. Hyatt, 50 Kan. 86, 89, 31 P ... 694; Sage v. Ijames, supra; Brigham v. Pfister, 151 ... Kan. 991, 994, 995, 101 P.2d 869; Allen v ... ...
  • Postlethwaite v. McCabe
    • United States
    • United States State Supreme Court of Kansas
    • March 9, 1918
    ...still more elaborate discussion it was unanimously held that it is not, and Comstock v. Adams was followed with approval. In Barbe v. Hyatt, 50 Kan. 86, 31 P. 694, these decisions were referred to and reaffirmed. The first of these was rendered in 1880, the second in 1889, and the third in ......
  • Fernald v. Winch
    • United States
    • United States State Supreme Court of Kansas
    • December 10, 1892
  • Towle v. Towle
    • United States
    • United States State Supreme Court of Kansas
    • February 12, 1910
    ...children. Other cases recognizing the validity of the statute are: Hafer v. Hafer, 33 Kan. 449, 6 P. 537, and 36 Kan. 524; Barbe v. Hyatt, 50 Kan. 86, 31 P. 694; v. Martell, 61 Kan. 703, 60 P. 741; Mitchell v. Mitchell, 69 Kan. 441, 77 P. 98. In Trumbly v. Martell, supra, referring to the t......
  • Request a trial to view additional results

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