Brown v. Brown's Adm'r

• Decision Date: 31 October 1878
• Citation: 68 Mo. 388
• Parties: BROWN v. BROWN'S ADMINISTRATOR, Appellant.
• Court: Missouri Supreme Court

68 Mo. 388

BROWN

v.BROWN'S ADMINISTRATOR, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Greene Circuit Court.--HON. W. T. GEIGER, Judge.Simmons & Travers for appellants.

1. As there was no dwelling house on the land in dispute, it could not constitute a homestead. 1 Wag. Stat., § 1, p. 697; 7 N. H. 245; Horne v. Tufts, 39 N. H. 483; Cook v. McChristian, 4 Cal. 26; Charless v. Lamberson, 1 Iowa 439; 23 Texas 502; 1 Am.Law Reg., pp. 649 to 656, (N. S.); Franklin v. Coffee, 18 Texas 415.

2. Respondent having abandoned her husband, and he having rented his house and farm, there was no one dependent upon him for support or under his control; and he was, therefore, neither a housekeeper nor the head of a family, and neither he, in his life-time, nor his wife, after his decease, was entitled to a homestead. Bowne v. Witt, 19 Wend. 475; Woodward v. Murray, 18 Johns. 400; Harshaw v. Merryman, 18 Mo. 106; Porter v. Bobb, 26 Mo. 36; Reese v. Chilton, 26 Mo. 598.

H. E. Howell for respondent.

1. It was not necessary that the building should have been situated upon the land in dispute; they were but a few steps north of it, upon a forty acre tract adjoining. Skouten v. Wood, 57 Mo. 380; Perkins v. Quigley, 62 Mo. 498; Thompson on Homesteads, § 145; West River Bank v. Gale, 42 Vt. 27.

2. Hall was not Brown's tenant when Brown died, and if he were, it would make no difference in this case. Taylor on Land. & Ten., (5 Ed.) § 24; Thompson on Homesteads, §§ 120, 274.

NAPTON, J.

This was an application to the court of probate and common pleas of Greene county, by the widow of Caleb Brown, asking that 120 acres, owned by her husband in his life-time, but then occupied by his administrator, should be declared her property in fee simple, under the 5th section of the homestead law, as it was in 1865, with a further petition that the administrator be ordered to deliver her possession of the same. This petition was filed in 1876, after the act of March 18th, 1875, but Caleb Brown's death occurred in 1874. The facts upon which this judgment was asked, were proved on the investigation, and are substantially these: Caleb Brown had a house in which he had resided for many years on a tract of land of eighty acres, in which he had merely a life estate, and cultivated portions of 120 acres adjoining, which belonged to him in fee, and which was proved to be worth not over $8.00 an acre. His children were all grown and married, and did not live with him. His wife, the plaintiff, lived with him on this place for about eight years, and then left him, on account, as she states in her testimony, “of troubles.” She afterwards returned to his house, but finally left him. When this last desertion occurred, Brown had on the place a tenant named Hall, and at Brown's request, after his wife left, Hall and his family moved into the house occupied by Brown, and Hall's wife superintended or performed all the services usually devolved on the female portion of the household. Brown only occupied a single room in the house. Hall had a contract with Brown to cultivate the place for another year, upon an agreed division of the profits and expenses, when Brown died only a few months after the final departure of his wife. After his death she was allowed the $200 authorized under the 33rd section of the 2nd article of the administration act, and the $400 under the 35th section.

1. HOMESTEAD: wife living apart from her husband.

As Caleb Brown died in 1874, the plaintiff's rights are of course to be determined by the law as it was at that date, without regard to changes subsequently made, although made before the commencement of this suit. One of the questions presented by the state of facts is, whether the voluntary abandonment by the plaintiff of her husband, previous to his death, destroyed her right to the homestead, or in other words, whether the husband, without any children, was the head of a family within the meaning of the homestead law, after his wife left him. In the examination of this question we have no precedents in this State to guide to a conclusion, and the statute of 1865 is not without obscurity, however plain may be its general object. The decisions in Texas and New Hampshire, on this point, are in direct opposition to each other, it being held in New Hampshire that while the marital relation exists, the husband still continues the head of a family, though his wife has left him, with or without cause, and there are no children, and in the Texas courts that abandonment by the wife without cause effects a forfeiture of her rights in the homestead. Mr. Thompson, in his work on Homesteads, suggests as an explanation of these apparently conflicting views, that in New Hampshire the wife's interest in the homestead is purely inchoate, resembling dower, whilst in Texas it is a present right depending on the keeping together of the family. Thompson on Homestead, § 75. This explanation is not entirely satisfactory, especially in cases where no creditors are concerned, as is the present, for the Texas court concedes that where the wife leaves for good cause the rule there would be different, and this concession necessarily involves the investigation of a question foreign to the main issue, depending on a great variety of circumstances and difficult of solution. The rule in New...