Cole v. Coons

Decision Date06 April 1946
Docket Number36561.
Citation167 P.2d 295,161 Kan. 332
PartiesCOLE et al. v. COONS.
CourtKansas Supreme Court

Rehearing Granted May 10, 1946.

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

Action for partition by Everett S. Cole and others against Joe Coons. From the judgment, the defendant appeals.

Syllabus by the Court.

When a wife dies intestate leaving surviving her adult children and their stepfather as tenants in common of a homestead occupied by her and her second husband prior to her death, the stepfather cannot resist partition thereof by such children. (Following Jehu v. Jehu, 110 Kan. 210, 203 P. 712.)

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.

BURCH Justice.

This case concerns a homestead interest asserted by a surviving husband of a wife who died intestate without minor children. The district court held that the involved property was subject to partition upon demand of the wife's adult children and that her surviving second husband did not have any homestead interest in the property which had been occupied by the husband and wife as their homestead prior to the death of the wife. The factual background follows:

P. A. Cole and Bessie D. Cole jointly owned a quarter section of land. P. A. Cole died intestate leaving his widow, Bessie Cole, and three children. The three children are the appellees. About ten years after the death of P. A. Cole his widow, Bessie, married Joe Coons, who is the appellant. Soon after the marriage Joe Coons and Bessie Cole Coons moved onto the property and for another period of ten years lived on and maintained the same as their residence and home until the death of Bessie Cole Coons. Joe Coons, at the time the action was brought, was still living in the improvements located upon the involved property and at such time all of the children of P. A. Cole and Bessie Cole Coons were adults. Apparently Bessie Cole Coons and Joe Coons were never the parents of any children. If they were, such children's rights are not involved in this case. Following the death of Bessie Cole Coons her estate was probated. She died intestate and in the course of administration she was found to have owned an undivided three-fourths interest in the quarter section of land. Such interest in the property was assigned one-half to Joe Coons and one-sixth to each of the three children in connection with the final settlement of the estate on September 17, 1943. Approximately one year later the children filed this partition action in the district court naming Joe Coons as the defendant.

The petition alleged that the parties to the action were tenants in common and after alleging the facts hereinbefore summarized prayed for statutory partition of the property. The answer of Joe Coons either admitted or alleged all of the facts referred to herein and alleged further that the children were not occupying the premises and had not occupied any part of it for over five years. The prayer of the answer set forth that by reason of the allegations and admissions in the answer the defendant had a homestead interest in the property; that partition therefore should be denied and in the alternative that if partition be decreed as to the plaintiffs' undivided one-fourth interest interited from their father, P. A. Cole, that a partition in kind be made of the described property and that an undivided three-fourths of the property be set apart to the defendant as his homestead; and that if it also was found that the property was not susceptible to partition in kind that upon the sale of the property an undivided three-fourths interest of the proceeds of said sale should be set aside for the benefit of the defendant and that he should be decreed to own absolutely one-half of the said three-fourths interest and also a homestead interest in the other one-half interest. The reply of the plaintiffs denied all allegations in the answer which were inconsistent with the allegations of the petition and alleged that the defendant had no homestead rights in and to the property and that said plaintiffs were not barred in any manner from their right to have said land partitioned. The facts herein referred to were established in the trial and no controversy exists relative to the same.

After considering the briefs filed in behalf of the respective parties the trial court found that the land was subject to partition; that the allegations in the plaintiffs' petition were true; the each of the plaintiffs owned a 5/24 interest in the land and that the defendant, Joe Coons, owned a 3/8 interest in the same, and that it should be partitioned. The court therefore appointed three commissioners and made the customary orders for alternative partition. The court did not establish in the defendant any homestead interest. A motion for a new trial was filed, denied, and notice of appeal followed.

Analysis of the question presented necessitates cognizance of certain significant factors. This is not an action involving homestead interests acquired against creditors; neither is it an action in which the homestead interest is asserted as a defense to a petition for partititon filed by collateral heirs or mere devisees who were not members of the family of the deceased wife. The plaintiffs were direct heirs of their deceased father and mother, both of whom died intestate owning undivided interests in the property, which the plaintiffs now seek to have partitioned. Such being true, a search of our decisions reveals that the question presented has been decided by this court in the case of Jehu v. Jehu, 110 Kan. 210, 203 P. 712. The syllabus in the cited case reads as follows:

'When the owner of a homestead dies intestate, leaving as his only heirs his widow and an adult son by a former marriage, the widow cannot successfully resist partition of the homestead in an action by the son; and the fact that she continues to reside on the homestead and the son resides elsewhere is immaterial.'

From the cited case the following is quoted:

'In her answer, defendant resisted partition of the homestead, alleging:
"That the homestead herein mentioned is not subject to partition but is the homestead of this defendant, and she is guaranteed the use and occupancy of said premises as a homestead by the Constitution of the state of Kansas.'
'Plaintiff lodged a demurrer to the above-quoted portion of the answer. The demurrer was sustained, and defendant appeals.
'Can there be any doubt about the correctness of this ruling? Does the fact that a son has attained his majority and no longer dwells under his father's rooftree diminish his right as a member of his father's family to share in the possession of the family homestead and to demand partition thereof? This question must be answered in the negative.

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