Borchers v. Borchers, No. 38353.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Van Osdol
• Citation: 179 S.W.2d 8
• Parties: HATTIE E. BORCHERS, Appellant, v. EARL C. BORCHERS, GRACE A. BORCHERS, EARL CLAY BORCHERS, and EARL CLAY BORCHERS as Guardian <I>ad litem</I> for WILMA JUANITA BORCHERS, ROEN VIRGINIA BORCHERS, and BLAINE GILBERT BORCHERS, Appellants, and CAROL R. BORCHERS, MABEL BORCHERS, ET AL., Respondents.
• Docket Number: No. 38353.
• Decision Date: 07 February 1944

179 S.W.2d 8 HATTIE E. BORCHERS, Appellant,
v.
EARL C. BORCHERS, GRACE A. BORCHERS, EARL CLAY BORCHERS, and EARL CLAY BORCHERS as Guardian ad litem for WILMA JUANITA BORCHERS, ROEN VIRGINIA BORCHERS, and BLAINE GILBERT BORCHERS, Appellants, and CAROL R. BORCHERS, MABEL BORCHERS, ET AL., Respondents. No. 38353. Supreme Court of Missouri. Division One, February 7, 1944. Rehearing Denied, March 6, 1944. Motion to Transfer to Banc Overruled, April 3, 1944.

[179 S.W.2d 9]

Appeal from Buchanan Circuit Court. — Hon. Sam Wilcox, Judge.

AFFIRMED.

Emmett J. Bartham and John P. Randolph for appellants.

(1) The court erred in decreeing partition of the Andrew County farm land contrary to the intention and desire of the testator, James B. Borchers, as said desire and intent was expressed in his last will and testament. Stevens v. De La Vaulx, 166 Mo. 20, 65 S.W. 1003; Hill v. Hill, 261 Mo. 55, 168 S.W. 1165; Shelton v. Bragg, 189 S.W. 1174; Dennig v. Mispagel, 260 S.W. 72; Secs. 568, 1721, R.S. 1939. (2) The court erred in refusing to set aside to plaintiff a homestead in said Andrew County farm land. It having been proven beyond denial that a homestead was established by plaintiff and the decedent in said Andrew County farm land, same could not be extinguished except by abandonment. "Abandonment" of homestead is leaving with no intention to return and use property as such. Maupin v. Longacre, 288 S.W. 54, 315 Mo. 872. (3) No abandonment of said farm land as a homestead was shown in this case. (4) Removing from a homestead leaving garden tools, furniture and chickens on the place with intention to return held not to be an abandonment. Victor v. Grimmer, 95 S.W. 274, 118 Mo. App. 592. (5) It is not necessary to continuously live upon land in order for it to constitute a homestead. Prouty v. Hall, 31 S.W. (2d) 103; Haggard v. Haggard, 233 S.W. 18; Mills v. Mills, 141 Mo. 195, 42 S.W. 709; Pocoke v. Peterson, 256 Mo. 501, 165 S.W. 1017; 29 C.J. 935, sec. 351; whereat this language is found: Continuous actual residence on the premises by the homestead claimants is not necessary in order to preserve the homestead rights therein." Foreman v. Maroney, 62 Tex. 723. (6) A widow cannot by removing her minor children from the homestead lands impair the rights of the children to occupy it as a homestead, nor has the widow any right to dispose of the homestead, to abandon it, or otherwise deal with it to the impairment of the rights of the children. Rhorer v. Brockhage, 86 Mo. 544. (7) A homestead may be maintained by use apart from residence of homestead by using the homestead property to furnish necessities for the comfort, convenience or support of the family. Lieber v. Lieber, 239 Mo. 1, 143 S.W. 458; Prouty v. Hall, 31 S.W. (2d) 103. (8) Once established it will be presumed that the status of a homestead continues until the contrary appears and the burden of proof that the homestead has ceased to exist is on him who asserts it. Seilert v. McAnally, 233 Mo. 505, 122 S.W. 1064; 29 C.J. 961, sec. 403. (9) The correct judicial attitude toward homestead laws is one of as great liberality in construction as the words and spirit permit. Balance v. Gordon, 247 Mo. 119, 152 S.W. 358; Haggard v. Haggard, 233 S.W. 18; Brennecke v. Riemann, 102 S.W. (2d) 874; Prouty v. Hall, 31 S.W. (2d) 103. (10) No abandonment of the homestead by the husband is pleaded by either of the respondents and therefore this question was not legitimately before the trial court for its determination. Bealey v. Blake, 153 Mo. 657, 55 S.W. 288. (11) A husband is debarred from alienating the homestead in any manner whatever unless joined by his wife. A noticeable feature of the homestead law is that the interests of the husband and wife are inseparable. Haggard v. Haggard, 233 S.W. 18; Sec. 609, R.S. 1939. (12) Land in order to constitute a homestead need not be contiguous and the homesteader nor his widow need not reside upon all of the land, it being sufficient that the land be occupied by a tenant and used as a homestead or to furnish the products and some of the necessities and comforts of life. Haggard v. Haggard, 233 S.W. 18; Prouty v. Hall, 31 S.W. (2d) 103. (13) A homestead estate is not subject to partition. Hufschmidt v. Gross, 112 Mo. 649, 20 S.W. 679. (14) The court erred in ordering, adjudging and decreeing the sale of the real property described in plaintiff's petition at partition sale, contrary to the will of James B. Borchers, deceased, and the expressed intention of said testator therein that said real estate be not sold during the lifetime of his widow, Hattie E. Borchers. See authorities cited under Point (1). (15) The Sheriff of Andrew County wrongfully and unlawfully failed to withdraw or postpone the sale of said Andrew County real property although prior to the time of said sale he was notified and requested by plaintiff so to do; and likewise the Sheriff of Buchanan County wrongfully and unlawfully failed to so withdraw or postpone the sale of Buchanan County property. Ivory v. Delore, 26 Mo. 505; Buller v. Linzee, 100 Mo. 95; Collier v. Catherine Lead Co., 106 S.W. l.c. 980; Sec. 1745, R.S. 1939. (16) The court erred in confirming and approving the sales.

K.D. Cross and Miles Elliott for respondents.

(1) All the appellants (as well as respondents) prayed partition and took the position that the real estate should be partitioned. Having done so, appellants cannot now complain of the action of the court in ordering partition. Lilly v. Menke, 143 Mo. 137; Huss v. Bakery Co., 210 Mo. 44; St. Louis v. Contracting Co., 210 Mo. 491; Mayfield v. Railway, 101 S.W. (2d) 769; Berberet v. Myers, 240 Mo. 58; Petrie v. Reynolds, 219 S.W. 934. (2) Plaintiff Hattie E. Borchers, the widow, having renounced the will and having elected to take a child's part, was entitled to have partition. No conditions or restrictions upon the title of the other devisees could defeat her right to partition. Dobschutz v. Dobschutz, 213 S.W. 843; Rupp v. Mollitor, 9 S.W. (2d) 609; Collins v. Crawford, 214 Mo. 167. (3) The intent of James B. Borchers, the testator, as expressed in his will, was that the estates created subject to the life estate of the widow should vest upon the termination of the life estate, and the will did not show an intent that the real estate should not be partitioned upon the termination of the life estate, which was terminated by the widow's renunciation of the will and by her election to take a child's part. Buckner v. Buckner, 240 S.W. 887, 164 S.W. 513. (4) Unless the will shows a contrary intent, the election of the widow to take against the will has the effect of accelerating any remainders to take effect after a life estate devised to her. 33 R.C.L. 333, sec. 323. (5) Abandonment of a homestead is a question of fact, and the evidence on the question having been conflicting this court will defer to the finding of the trial court. Matthewson v. Kilburn, 183 Mo. 110; Snodgrass v. Copple, 131 Mo. App. 346; Kaes v. Gross, 92 Mo. 647; Smith v. Bunn, 75 Mo. 559; Klotz v. Rhodes, 240 Mo. 499; Rouse v. Caton, 168 Mo. 288; Smith v. Thompson, 169 Mo. 553. (6) Removal of the family from the homestead constitutes a prima facie case of abandonment and raises a presumption against the claim of homestead, which must be rebutted before the claim can be successfully asserted. Palmer v. Omer, 295 S.W. 123; See, also, cases cited under (5). (7) It was not necessary for respondents to plead abandonment of the homestead. Plaintiff's amended petition having presented the issue, the burden was on her to prove there had not been an abandonment. Smith v. Thompson, supra. (8) The case was tried by all parties on the theory that this issue was before the court and, therefore, appellants could not, in any event, complain that this issue was not raised by the pleadings. (9) The question of whether there was a homestead was a disputed issue of fact and was decided adversely to appellants. (10) The sheriff had no right to postpone the sale upon the notice or request of plaintiff, who was only one of the parties asking partition. He was the agent of all the parties. Indeed, it is doubtful if he could have lawfully postponed the sale, even upon the request of all the parties. For the statute says that, upon delivery to him of the order of sale, the sheriff shall "in due time proceed to advertise and sell." Gore v. Burdette, 162 S.W. 321; Sec. 1745, R.S. 1939. (11) The court properly confirmed the sheriff's report of sale on each piece of real estate. The real estate did not sell for an inadequate price. The trial court saw and heard the witnesses on this question and this court will defer to its ruling.

VAN OSDOL, C.

Action to partition a small residence property in St. Joseph and a 245 acre farm in Andrew County. A question of homestead was presented and the title to the property was also involved...