Broyles v. Cox

Citation54 S.W. 488,153 Mo. 242
PartiesBROYLES v. COX et al.
Decision Date14 November 1899
CourtUnited States State Supreme Court of Missouri

2. The homestead act of 1875, providing that the homestead, on the death of the head of the family, shall pass to the widow and children, without being subject to payment of his debts, till the youngest child is of age and the widow dies, but his interest in the premises, except the estate of homestead thus continued, shall be subject to the laws relating to payment of debts against the estate of deceased, does not permit of sale of the premises, during the minority of the children or the life of the widow, subject to their homestead rights, for payment of deceased's debts. Such sale cannot be till after termination of their homestead rights.

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

Action by Columbus Broyles against Emma Cox and others. From an adverse judgment, plaintiff appeals. Affirmed.

William S. Cox died in Lincoln county, in August, 1896, leaving personal property of the value of $292, and 58 acres of real estate of the value of $1,316.26, which being duly appraised, by appraisers appointed by the probate court, as of the value stated, was by order of that court turned over to his widow, the defendant Emma Cox, as her absolute property, and letters of administration refused, "unless, on application of creditors or other persons interested, the existence of further or other property be shown." Thereafter, in 1897, the plaintiff applied to the probate court for an order granting letters of administration on said estate, alleging that he was a creditor thereof. On a hearing that court granted the application, "holding that the fee in the homestead of the widow is subject to the payment of debts contracted prior to the amendment of the homestead act by the legislature in 1895." Emma Cox, the defendant, appealed to the circuit court; and that court held that William S. Cox "at his death, or since, owned no property subject to administration," and ordered that no administration be had upon his estate. From this judgment the plaintiff appealed to this court.

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

MARSHALL, J. (after stating the facts).

The land in controversy was a part of the estate left by the father of William S. Cox at his death, some time prior to 1861, and was the portion of the father's estate which was set off to W. S. Cox by the voluntary partition between the heirs in 1878. At that time W. S. Cox was unmarried, and lived on this land; and his mother and two unmarried sisters and a brother lived with him on the land, and continued so to do until the death of the mother, in February, 1883, the marriage of one of the sisters just after her mother's death, and the death of the other sister, shortly afterwards. Thereafter, for 18 months, W. S. Cox lived on the place alone, until he married, and thenceforward he continued to live on it with his family as his homestead until his death, in 1896, and his widow and four children have lived on it ever since. A Mr. Smith, witness for plaintiff, testified that while W. S. Cox, and his mother, sisters, and brothers lived on the land, he did not know who supported the family, but that "Sumner [W. S. Cox] said they all contracted their own debts and settled them when he and the boys and the old lady lived there. The old lady paid her debts. Each was living independent of the other." Columbus Cox, one of the brothers of W. S. Cox, also a witness for plaintiff, who was the administrator of the mother's estate, testified: That the mother left a horse, some cattle, and "a few things around the house," which W. S. Cox bought at the administrator's sale. That, at the time his mother died, "Sumner and two sisters were living there then. They all lived off of the place. Sumner cultivated the farm then. After the division, and Sumner got his piece of land, he and the two girls lived on it with mother until her death, in 1883. One of the girls married just after mother's death. Sumner kept batch about eighteen months before he was married in 1884. After he married he lived on the place until he died, last year. He left a wife and four children. * * * Sumner and the girls kept house. Mother helped along. She attended to the housekeeping. The bills were all run together, and all paid together. We all worked and made the money." This same witness further testified as follows: "Q. Your mother and sisters and you would contract your own bills and pay your own debts? A. No, sir. Q. Did your brother pay any bills for your mother? A. The way that was done, — the bill was all run together, — everything they bought. Q. All pay together? A. Yes, sir; everything was carried on in his name, and he done the paying. Q. Each of you contributed your part? A. We worked and made the money. Q. He done it? A. He was the head of the family. Q. The old lady paid her bills, too? A. No, sir; that's the way it was paid. Of course, they raised chickens. Q. Your mother did not contract any store bills in her own name? A. No, sir." Fred Cox, a brother of the deceased, and a witness for defendants, testified: "Sumner was the head of the family, and supported the family. After mother's death he remained there. Sisters lived with him a month after. Sumner lived there alone eighteen months, and then married, and lived there until he died. Left his wife and four children. They are occupying the premises. * * * Sumner provided everything, and supported the family. When I lived there the boys all worked together and supported the family." The plaintiff holds a note made by W. S. Cox, dated March 16, 1883, for $150, payable one day after date, with interest at the rate of 10 per cent. per annum, compounded annually, on which there is a credit of $50 March 1, 1886, and $100 November 26, 1887.

No declarations of law were asked or given. Appellant here asserts two propositions of law: First, that W. S. Cox was not entitled to a homestead in the land, because he was not the head of a family or a housekeeper at the time the land was acquired, in 1878, or at the time the debt to plaintiff was contracted, in 1883; and, second, that, if Cox was entitled to a homestead at all, it was under the act of 1875, which at his death became assets of his estate, and liable to sale, subject to the life use of the widow, and the minor children until their majority, and the plaintiff, as his creditor, has an interest in the homestead, and that the homestead act of 1895 (Acts 1895, p. 186), so far as it operates upon debts in existence at that time, "violates the constitution, prohibiting the enactment of laws impairing the obligation of a contract," — both of which propositions were called to the attention of the trial court in the motion for a new trial. This being a proceeding at law, and no declarations of law being asked or given by the trial court, and the facts not being agreed upon, or the evidence wholly documentary, we might content ourselves with merely affirming the judgment below for this reason. Sieferer v. City of St. Louis, 141 Mo., loc. cit. 592, 43 S. W. 164. But, as there is no substantial conflict in the evidence as to the facts, it presents practically a simple question of law, and we shall so treat it.

From 1878 to February, 1883, when his mother died, William S. Cox owned the land in question. His mother, two sisters, and at least one brother lived with him on the land. They all worked, in one capacity or another, — much as the members of a man's family living in the country usually do. Both of his brothers (one a witness for, and the other against, his widow and children) testify that he was the head of the family; that all the bills were made in his name, but that all the relatives worked to help make the money that paid the bills. As against this testimony is that of Mr. Smith, a neighbor of deceased, who testified on behalf of the plaintiff that he did not know who supported the family, but that Sumner (the deceased) said they all...

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