Cross v. Benson

Decision Date06 February 1904
Docket Number13,485
Citation75 P. 558,68 Kan. 495
PartiesMARY CROSS, etc., et al., v. A. W. BENSON, Receiver, etc
CourtKansas Supreme Court

Decided January, 1904.

Error from Lyon district court; DENNIS MADDEN, judge.

Judgment reversed.



1. CONSTITUTIONAL LAW--Homestead and Exemptions. The constitutional exemption of a homestead from forced sale under process of law may survive to the family of its owner after his death.

2. CONSTITUTIONAL LAW--Family of Homestead Owner Defined--Right of Wife after Husband's Death. If a husband and wife occupy a tract of land belonging to him as a homestead, she is the family of the owner within the meaning of the constitution, and his death does not deprive her of the right to continue to be so designated in order to maintain the homestead, to which she takes title and which she continues to occupy, free from forced sale under process of law for the payment of his debts.

3. CONSTITUTIONAL LAW--Descents and Distributions--Purpose of Statute. The purpose of the statute of descents and distributions is to provide for the transmission of title at death in case of intestacy and to regulate the division of estates among heirs. It is not primarily an exemption or homestead law; and though it may enlarge the right to an exemption of real estate from appropriation to the payment of debts, it cannot restrict the constitutional guaranty.

4. WILLS--Election of Widow Does Not Destroy Homestead Right. Upon the death of her husband a wife may elect to take title under his will to their homestead, which she continues to occupy, without subjecting it to the payment of his debts.

5. WILL--Merely Formal Phrases will not Destroy Homestead Character of Devised Property. The use of merely formal phrases will not make a devise of a homestead subject to the payment of the testator's debts; to do so, the language employed must be unequivocal and imperative.

6. TRUST DEED--Not Testamentary. A trust deed examined and held not to be testamentary in character.

7. HOMESTEAD AND EXEMPTIONS--Member of the Family Defined. A minor child, who resides with her grandparents under such circumstances that she becomes in fact dependent upon them and they become morally responsible for her nurture, becomes a member of their family within the meaning of the homestead provision of the constitution without formal adoption; and this is true even though her father, who is divorced from her mother, still lives, and has a decree of court awarding her custody to him.

Kellogg & Madden, and Lambert & Huggins, for plaintiffs in error.

Rossington, Smith & Histed, and Graves & Hamer, for defendant in error.

BURCH J. All the Justices concurring.



On the 4th day of September, 1894, H. C. Cross, of the city of Emporia, died testate, leaving as his heirs at law his widow, Sue S. Cross, and an adult son, Charles S. Cross. At the time of his death he was the owner of certain contiguous lots of ground within the limits of the city which in their entirety were less than one acre in extent and which were occupied as a residence by himself and wife. Their infant granddaughter, Mary, the child of Charles S. Cross, lived with them. Charles S. Cross had been divorced from Mary's mother. The decree dissolving their marriage awarded the legal custody of the child to her father, but by an understanding of the parties it was arranged that Mary should make her home with her grandparents. Thenceforth they assumed the care and responsibility of her nurture and she was treated as their child. The will of H. C. Cross expressed the desire that his debts and funeral expenses be first paid, and devised the homestead to his wife. Upon its probate the widow elected to take under the will. After the death of her husband, Mrs. Cross and Mary continued to reside upon the homestead property. Mrs. Cross continued to sustain the same cherishing relation toward Mary as before, and ultimately adopted her by formal proceedings in the probate court.

Charles S. Cross survived his father a little more than a year. On February 5, 1902, Sue S. Cross died, leaving a will which was afterward properly probated, in which the homestead was devised to F. C. Newman, as executor, to be sold, however, and the proceeds to be invested in interest-bearing securities which, with the income to accrue from them, were to be the property of Mary. On the day following that of the execution of the will Mrs. Cross executed a deed purporting to convey in fee the homestead, with full covenants of warranty, to F. C. Newman, as trustee for the benefit of Mary, reserving to herself, however, a life-estate, and providing that after her death the property should be sold and the proceeds devoted to the same uses as the will prescribed. A subsequent codicil to the will annulled a specific bequest and changed the beneficiaries of the residual portion of the estate, but did not disturb the devise of the homestead upon which Mary continued to abide alone.

Creditors of the estate of H. C. Cross secured a judgment subjecting this property to the payment of their claims, and the question for determination is whether that judgment was authorized by our constitution and laws. In support of the judgment the following claims are made:

"I. The constitutional exemption does not survive the death of the owner of the homestead. Any extension of the homestead estate beyond the death of the owner must be found, if at all, in the statute of descents and distributions.

"II. Under the statute of descents and distributions, a homestead estate does not survive for the benefit of a widow and child or children who have reached the age of majority, there being no minor heirs.

"III. After the death of the homestead owner, who dies testate, leaving children who have attained the age of majority and without minor heirs, his widow may elect to take under the statute of descents and distributions or under the will. If she elects to take under the will, she thereby abrogates her right to claim any homestead exemption against the debts of her husband.

"Applying the foregoing propositions of law to the case at bar, our position may be summarized:

"(a) At the time of the death of H. C. Cross, he leaving a widow and one son who had attained the years of majority, the homestead character of the property ceased and determined, and his widow and son, if he had died intestate, would have been entitled each to a moiety of the property under the statute of descents and distributions. Inasmuch as the only living adult son could not claim the integrity and protection of the homestead, neither could the widow. (b) But H. C. Cross died testate, and in his will devised the whole of the property in question to his widow, and she electing to take thereunder, it follows that she thereby took the same subject to the ante-mortem debts of her husband, the payment of which was expressly directed by his will.

"IV. Assuming, however, but merely for the purpose of argument, that Sue S. Cross did acquire a homestead under the will exempt from the debts of her husband, such homestead affected by such exemption could continue only during her life; and while she might sell or convey the property in her lifetime, free from the obligations of her husband, she could not devise it nor could her heirs inherit it exempt from the payment of her husband's debts.

"V. The trust deed to F. C. Newman, of March 2, 1901, was not a conveyance, but amounted merely to a testamentary disposition of her property in accordance with the terms of the will already made, and this is made conclusively apparent by her subsequent change in the disposition of her property by the codicil of November 21."

The principal question here proposed for determination is one of constitutional interpretation.

Out of the womb of history there has come to us an institution known as the family. Its establishment has been believed to be by the ordinance of divinity itself. "God setteth the solitary in families." The pagan Plato understood its fundamental importance; "Whatever is most excellent in the state must always begin at the fireside." And when the modern critical method of inquiry made it the subject of investigation, and the sciences of biology and anthropology and sociology and the rest had summed up and compared the results of their exhaustive researches, they concurred in proclaiming that, aside from its efficiency as an economic arrangement for the promotion of race and individual progress, the moral virtues which constitute the bright, consummate flower of our humanity all had their origin, received their nurture and attained their perfection within and through the family. Therefore, the present age, with its keener insight and its ampler understanding, regards the family with an enthusiasm and a respect more tender, more intense and more profound than ever before, and the courts will abate none of their jealousy to see that laws intended for its conservation and protection are administered in a spirit as beneficial and as kind as the language of the instruments will bear.

A consideration of the origin and purpose of the homestead right and of its establishment in the constitution of this state will show that the provisions made in that document were intended to be complete, and that all legislative action in attaining the desired end was intended to be dispensed with.

With a higher appreciation of the function and importance of the family came more liberal sentiments toward its submerged element, the wife, and her elevation, through an amelioration of the law. The word "family" has it root in the Oscan word "famul," which signifies a slave. Much of this primary meaning was applicable to the status of...

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43 cases
  • In re Casey's Estate
    • United States
    • Kansas Supreme Court
    • March 6, 1943
    ...the will does not subject the homestead to the payment of his debts, although the will places full title to the homestead in her. Cross v. Benson, supra; Homewood v. Eggers, 132 Kan. 256, 259, 295 P. In our consideration of these cases we have not been unmindful of our decisions to the effe......
  • Postlethwaite v. McCabe
    • United States
    • Kansas Supreme Court
    • March 9, 1918
    ...allege that the debt sought to be enforced against the property is not embraced within any of the exceptions." (p. 393.) In Cross v. Benson, 68 Kan. 495, 75 P. 558, following is found: "And since the lots in question were continually impressed with the homestead interest of Sue S. Cross in ......
  • Johnson's Estate, In re
    • United States
    • Kansas Supreme Court
    • March 8, 1969
    ...retained its exempt nature as long as members of the owner's family continued to dwell thereon after his death (Cross v. Benson, 68 Kan. 495, 75 P. 558, 64 L.R.A. 560); and by various statutes, culminating with K.S.A. 59-401, the legislature has expressly extended such exemption, upon the d......
  • Deckenbach v. Deckenbach
    • United States
    • Oregon Supreme Court
    • March 11, 1913
    ... ... Saunders v. Saunders, 115 ... Iowa, 275, 88 N.W. 329; Cone v. Cone, 118 Iowa, 458, ... 92 N.W. 665; Cross v. Benson, 68 Kan. 495, 75 P ... 558, 64 L.R.A. 560; Christ v. Kuehne, 172 Mo. 118, ... 72 S.W. 537; Stamper v. Venable, 117 Tenn. 557, ... ...
  • Request a trial to view additional results
1 books & journal articles
  • Kansas Homestead Law
    • United States
    • Kansas Bar Association KBA Bar Journal No. 65-04, April 1996
    • Invalid date
    ...Creditors," section V.C. [FN294]. Postlethwaite, 102 Kan. 104; Dayton v. Donart, 22 Kan. 256, Syl. ¶ 2 (1879). See also Cross v. Benson, 68 Kan. 495, 508, 75 P. 558 (1904) (recognizing that devisee of homestead property could convey it unencumbered of testator's obligations). [FN295]. Vinin......

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