Cole v. Coons

Decision Date05 April 1947
Docket Number36561.
Citation162 Kan. 624,178 P.2d 997
PartiesCOLE et al. v. COONS.
CourtKansas Supreme Court

Appeal from District Court, Reno County; F. B. Hettinger, Judge.

On rehearing.

Former opinion adhered to.

For former opinion, see 161 Kan. 332, 167 P.2d 295.

HARVEY C. J., dissenting in part.

Syllabus by the Court.

1. When real property is owned by tenants in common one cotenant cannot establish a homestead right therein as against the interests of other cotenants.

2. If real property is owned by cotenants before the death of one cotenant occurs, the survivors of the deceased cotenant cannot establish a homestead right of occupancy in the property which will defeat, delay or affect partition thereof by the other cotenants.

3 G.S.1945 Supp. 59-402 does not create a homestead right and is applicable only to real property in which homestead rights can be established,

4. Such statute applies only to tenancies in common created by immediate descent and does not change the status of property fixed prior to the death of a decedent.

C. E Chalfant, of Hutchinson (Harold R. Branine and Fred C. Littooy, both of Hutchinson, on the brief), for appellant.

Paul R. Wunsch, of Kingman (Chas. H. Stewart, of Kingman, on the brief), for appellees.

U. S. Weary, of Junction City, amicus curiae.

BURCH, Justice.

The original opinion in this case was filed as of April 6, 1946 and appears in 161 Kan. 332, 167 P.2d 295. A motion for a rehearing was allowed, additional briefs were filed and the case was re-argued. The argument which convinced this court that the motion for a rehearing should be allowed was to the effect that the court followed the case of Jehu v Jehu, 110 Kan. 210, 203 P. 712, without giving reported consideration to the wording of a relatively new statute in the present probate code. Such statute is G.S.1945 Supp. 59-402, which reads:

'The homestead shall not be subject to forced partition unless the surviving spouse remarries, nor until all the children arrive at the age of majority.' (Emphasis supplied.)

The corresponding statute and source of prior law which was in effect before its repeal and when Jehu v. Jehu, supra, was decided, is now shown as G.S.1935, 22-105. It reads:

'If the intestate left a widow and children, and the widow again marry, or when all of said children arrive at the age of majority, said homestead shall be divided, one half in value to the widow and the other one half to the children.' (Emphasis supplied.)

Because the present statute, G.S.1945 Supp. 59-402, was not cited in the original opinion the impression may prevail that its significance was overlooked. In justice to counsel for the appellant, however, it should be said that such statute was called to our attention and its force emphasized in appellant's original brief. In the proceedings on rehearing our attention has been called again and again to the difference in the wording of the former statute and the wording of the present statute. The prior statute obviously provided that when a widow and children survive an intestate the homestead could be the subject of partition when and if the widow again married or when all of the children arrived at the age of majority. The present statute reading, 'The homestead shall not be subject to forced partition unless the surviving spouse remarries, nor until all the children arrive at the age of majority,' may have a very different meaning. Counsel for the appellant emphatically contend that it was the deliberate intention of the legislature when it repealed G.S.1935, 22-105, in connection with the passage of G.S.1945 Supp. 59-402, to change the meaning in such manner that thereafter the surviving spouse with adult children would continue to have the same rights as a spouse without children or with minor children unless the spouse remarried. In support of such contention they cite Bartlett's Kansas Probate Law and Practice, Vol. 1, Sec. 195, P. 187, et seq. The cited text clearly supports the contention. Also, it is contended that the word 'nor' as distinguished from 'or' is a negative connective or particle introducing a second negative of a negative proposition. This court does not necessarily disagree with such contentions and in so far as the syllabus to the original decision and the corresponding part of the opinion conflict with such contentions the same may be regarded as being set aside as the court does not intend that the original opinion shall be construed as deciding, by implication or otherwise, that the two statutes are identical in meaning. The question before the court, however, is whether the present statute has any application or is controlling in the instant controversy.

Before giving consideration to the abovestated question we note further that the original opinion, near the close thereof, reads as follows [161 Kan. 332, 67 P.2d 298]: 'Counsel for appellees call our attention to the fact that the appellant failed to have a homestead interest in his behalf established in the probate proceedings. Such a defense was not alleged in the reply filed by the appellees and was not passed upon by the trial court.' In the supplemental briefs and abstracts filed in connection with the rehearing it is established that counsel for appellees asked leave to amend their reply by setting forth, in substance, that the appellant was estopped from asserting or had waived the right to assert any claim to a right of homestead occupancy by reason of his failure to file a petition in the probate court claiming a homestead interest in the property as he might have done under the statute that is now G.S.1945 Supp. 59-2235. Counsel for the appellant concede that he did not file such a petition. The record discloses further that in the instant case the trial court clearly took the position that an owner of an undivided interest cannot establish a homestead right as against a cotenant and that a surviving spouse cannot assert a homestead interest in property that was subject to partition by joint tenants before the deceased spouse died. For such reason the written opinion filed by the court concludes as follows: 'In view of the above it is unnecessary to decide the question raised by the plaintiffs that the defendant is estopped from now claiming a homestead right when it was not asserted and adjudicated in the Probate Court.' The reasoning of the trial court seems logical. If no homestead interest could be asserted as against cotenants in this case, then such a non-existing interest could not be waived or otherwise lost by failure to assert the same in any court because there was nothing to assert. Consequently, if the trial court was correct as to the basis for its ruling, then this court also does not reach for decision the question whether a waiver of or an estoppel to assert a homestead claim develops in the present case.

For the purpose of clarity, perhaps it is prudent to review again some of the pertinent facts. P. A. Cole and his wife, Bessie D. Cole, purchased the land in question in 1915, taking title in such a way that each had an undivided half interest therein. They were the parents of the appellees. P. A. Cole died intestate in 1922. His estate was not administered and it is conceded that one-half of his estate passed to his widow, Bessie D. Cole, and the other one-half to their three children. This left the title to the land in Bessie D. Cole and her children as tenants in common, she owning an undivided 3/4 interest and the children collectively owning a 1/4 interest, each of them owning a 1/12 interest. In 1932 Bessie D. Cole married Joe Coons, the appellant, and shortly thereafter they moved upon the land and made it their home. On July 19, 1942 Bessie D. Cole Coons died intestate and her estate was duly probated in Reno County, Kansas. The administration was closed on September 7, 1943. Prior to her death her children, who are the appellees in the present case, collectively, as tenants in common with their mother, owned undivided interests in and to the property by reason of the children having inherited from their father one-half of his original interest in and to the property. Obviously, when their mother died the appellees also collectively acquired by descent from their mother one-half of her three-fourths interest in the property, with the result that the appellees at the time the action was brought were the owners of 15/24 of the property and the appellant was the owner of the remaining 9/24. A significant fact to be noted is that the appellees were collectively the owners as cotenants of 6/24 of the property before the death of their mother occurred. It should be noted also that they had become adults and their mother had remarried long before the action was brought. The appellant admits the appellees owned the respective interests in the property as cotenants, and the other circumstances herein set forth but contends that upon the death of Bessie D. Cole Coons he became entitled not only to have title established in him as to his 9/24 interest in the property but that he was entitled also to a homestead right of occupancy in all of the interest owned by Bessie D. Cole Coons prior to her death. The appellees contend that the appellant was not entitled to any homestead right of occupancy because the property was owned in cotenancy prior to the death of Bessie D. Cole Coons.

In considering the question presented, it is well to bear in mind at the outset that the statute, G.S.1945 Supp. 59-402 supra, does not create a homestead. It only provides that partition of a homestead may be had when and if it and certain other prescribed conditions exist. It presupposes that a homestead right exists. Its wording does not permit any other construction. As...

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