Chapman v. Richey

• Decision Date: 23 January 1980
• Docket Number: No. 51180,51180
• Citation: 399 N.E.2d 1277,35 Ill.Dec. 749,78 Ill.2d 243
• Parties: , 35 Ill.Dec. 749 Kenneth CHAPMAN et al., Appellants, v. Patricia RICHEY et al., Appellees.
• Court: Illinois Supreme Court

Page 1277

399 N.E.2d 1277

78 Ill.2d 243, 35 Ill.Dec. 749

Kenneth CHAPMAN et al., Appellants, v. Patricia RICHEY et al., Appellees.

No. 51180.

Supreme Court of Illinois.

Jan. 23, 1980.

Robert L. Douglas, Robinson, for appellants.

Lawrence E. Eaton, Newton, for appellee.

McCarthy, Scheurich, Duffy, Neidhart & Snakard, Chicago (John M. Duffy and Richard J. Witry, Chicago, of counsel), for amici curiae Arthur Christman and Kathleen Partlow.

Earl L. Vaugniaux, Edwardsville, for amici curiae Alice L. Rhodes and Albert H. Buehnemann.

KLUCZYNSKI, Justice:

The sole issue raised in this appeal is whether defendant Anna Chapman, following renunciation of her husband's will, is entitled to a setoff of homestead in a partition action brought by those who, by virtue of Anna's act of renunciation, had become cotenants with Anna in the marital home of Anna and her husband. The circuit court of Jasper County denied the claim of homestead, the appellate court reversed, one justice dissenting (63 Ill.App.3d 650, 20 Ill.Dec. 266, 379 N.E.2d 1334), and we allowed plaintiffs' petition for leave to appeal.

On July 9, 1976, Everett Chapman died testate. One provision of his will specified that his wife, defendant Anna Chapman, was to receive a life estate and that his six children were to receive remainder interests in the 40-acre parcel of property on which Everett and Anna had resided. During his lifetime, Everett had held the property in fee as the sole owner. The children who were to receive remainder interests under the will include plaintiffs Kenneth Chapman, Louise Messenger, Doris Stifle, Macie Hollinger, Donna Biggs, and defendant Patricia Richey.

Everett's wife, Anna, renounced the will and thereby took a one-third interest in the property, and the six children each took one-ninth interests. (See Ill.Rev.Stat.1975, ch. 3, par. 2-8.) By virtue of her decision to renounce the will, Anna and the children would hold their respective interests as tenants in common.

Plaintiffs, five of the six children, brought suit seeking partition of the property and naming Anna Chapman and Patricia Richey, the remaining child, as defendants. Anna sought a setoff of homestead under the Homestead Act (Ill.Rev.Stat.1975, ch. 52, par. 1 et seq.), but the circuit court refused to grant such relief on the basis of a 1965 amendment to the Act which renders homestead unavailable as between cotenants. The appellate court reversed, and this appeal by plaintiffs followed. We agree with plaintiffs that the circuit court properly denied a setoff of homestead and accordingly reverse the judgment of the appellate court.

The provisions of the Homestead Act here relevant are contained in sections 1 and 2 of the Act. Section 1 provides:

"Every householder having a family shall be entitled to an estate of homestead to the extent in value of $10,000, in the farm or lot of land and buildings thereon owned or rightly possessed by lease or otherwise and occupied by him or her as a residence; and such homestead, and all right and title therein, shall be exempt from attachment, judgment, levy or execution sale for the payment of his debts or other purposes and from the laws of conveyance, descent and devise, except as hereinafter provided or as provided in Section 234 of the Probate Act, as heretofore or hereafter amended. This section is not applicable as between joint tenants or tenants in common but it is applicable as to any creditors of such persons." (Ill.Rev.Stat.1975, ch. 52, par. 1.)

The last sentence of the section was added by a 1965 amendment and forms the basis of the circuit court's decision to deny a setoff of homestead. Section 2 provides in pertinent part that homestead continues after the householder's death "for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead * * *." (Ill.Rev.Stat.1975, ch. 52, par. 2.) The appellate court, in holding that Anna Chapman is entitled to a setoff of homestead, relied on section 2 and on that portion of section 1 which provides that homestead is exempt "from the laws of conveyance, descent and devise."

Though reference to isolated, provisions of sections 1 and 2 might be interpreted to allow a setoff of homestead to Anna Chapman, as the appellate court held, such a setoff is clearly rendered unavailable by the 1965 amendment to section 1. By renouncing Everett's will, Anna and her six children took the property as tenants in common. Having thus become a cotenant with the children, Anna became subject to the 1965 amendment and thereby lost any claim that she might have had to homestead. In this respect, we disagree with the appellate court's judgment in this case. The appellate court relied on Anderson v. Anderson, 62 Ill.App.3d 468, 19 Ill.Dec. 204, 378, N.E.2d 1079 (1978), and 42 Ill.App.3d 781, 1 Ill.Dec. 506, 356 N.E.2d 788 (1976), in reaching its conclusion that Anna Chapman is entitled to a setoff of homestead. The Anderson opinion, however, contains no mention of the 1965 Homestead Act amendment. The failure of the court to there consider the effect of the amendment therefore renders Anderson inappropriate for consideration in assessing Anna Chapman's entitlement to homestead.

The appellate court also erred in holding that the 1965 amendment is merely a codification of the law as it existed at the time. This is a concept that we explicitly rejected in Phillips v. Phillips (1978), 74 Ill.2d 27, 33, 23 Ill.Dec. 102, 105, 383 N.E.2d 973, 976, stating that the amendment was enacted to simplify partition litigation by removing the "need to determine which cotenant is the householder entitled to the exemption, whether a cotenant has abandoned the premises, and various other issues which arise in homestead cases and which were once frequently litigated in partition actions * * *." Under the law as amended, the only question that need be answered is whether the claim of homestead is being asserted by one cotenant against another. If the claim is so asserted, a setoff of homestead is unavailable.

The operation of the amendment, as it applies to a partition action between divorcing spouses, was explained in Phillips. We there said, "We are without the benefit of the legislative history of the amendment, but its language is clear and must be followed. (Droste v. Kerner (1966), 34 Ill.2d 495, 503, 217 N.E.2d 73.) It plainly appears that the legislature intended that the exemption should not be available as between cotenants, and we now hold that this prohibition encompasses the situation presented here in which the exemption is sought to be asserted by one spouse against another in the course of partition proceedings." (Phillips v. Phillips (1978), 74 Ill.2d 27, 31, 23 Ill.Dec. 102, 104, 383 N.E.2d 973, 975.) The factual situation in the case now before us differs from that in Phillips ; involved here is a surviving spouse who, following renunciation of her husband's will, is asserting a claim of homestead against those with whom she had become a cotenant by virtue of her act of renunciation. Under the 1965 amendment, however, the difference is not one which requires a different result. The simple but crucial fact is that Anna Chapman is a cotenant with those against whom she seeks a setoff of homestead. As we said in Phillips, "In taking the property as cotenants, the respective interests of the parties were established. By the 1965 amendment to the Homestead Act, the legislature has determined that a cotenant may not enlarge his interest by being allowed a setoff of homestead." (74 Ill.2d 27, 31-32, 23 Ill.Dec. 102, 104, 383 N.E.2d 973, 974.) The amendment sweeps...