Dennis v. Gorman
| Decision Date | 11 July 1921 |
| Citation | 233 S.W. 50,289 Mo. 1 |
| Parties | ALLIE DENNIS et al., Appellants, v. W. H. GORMAN |
| Court | Missouri Supreme Court |
Appeal from Wright Circuit Court. -- Hon. C. H. Skinker, Judge.
Affirmed (in part); reversed and remanded (in part, with directions).
George W. Goad for appellants.
(1) Under the homestead law of 1895 the homestead tract could not be sold by the administrator of the deceased householder to pay the general debts of his estate. Broyles v. Cox, 153 Mo. 242; In re Powell's Estate, 157 Mo. 151; Kenne v. Wyatt, 160 Mo. 1; Balance v Gordon, 247 Mo. 119; Armor v. Lewis, 252 Mo 568; Ehlers v. Potter, 219 S.W. 915. (2) Under the homestead law of 1895 the homestead tract could not be sold to pay the general debts of the deceased householder, even after the death or remarriage of the widow, and the majority of the minor children, in which event the homestead tract passed in fee to the heirs of such deceased householder free from debts not charged thereon in his lifetime. Street v McCune, 148 Mo.App. 700; New Madrid Banking Co. v. Brown, 165 Mo. 39; Balance v. Gordon, 247 Mo. 119; Armor v. Lewis, 252 Mo. 568; Ehlers v. Potter, 219 S.W. 915. (3) The homestead law of 1895 was amended in 1907 by adding thereto a specific prohibition against the sale of the homestead tract for payment of the debts of the deceased householder, unless such debts were charged thereon during his lifetime, which amendment was a complete recognition and adoption of the construction of the court of the 1895 law, and applies to the case at bar. R. S. 1909, sec. 6708. (4) The probate court was without jurisdiction in ordering and approving said sale. Such orders were not final judgments. The sale was void, no title passed thereby and is open to attack in this proceeding. Balance v. Gordon, 247 Mo. 119; Armor v. Lewis, 252 Mo. 568; Ehlers v. Potter, 219 S.W. 915. (5) The homestead rights of the children cannot be impaired by abandonment by the widow. Phillips v. Presson, 172 Mo. 24. (6) The word "children" as used in the 1895 homestead law and the 1907 amendment should be construed to include grandchildren, especially as in this case, where the grandchild is an orphan, lived with, was supported by and a member of the family of the deceased householder. Werne v. Large, 258 Mo. 163; Kenny v. McVoy, 206 Mo. 42; Moran v. Stewart, 122 Mo. 295; In re Williams Estate, 62 Mo.App. 339.
J. W. Jackson and Lamar & Lamar for respondent.
(1) At the time of the sale the widow had conveyed her right by deed, had moved to Springfield and established a home. The two children were both of age, the oldest twenty-eight and the youngest twenty-two, at the date of the sale. The grandchild, Leon England, is not a beneficiary of this homestead statute. (a) "Children" as used in the statute providing for a homestead for the widow and children, does not include "grandchildren," although such grandchild may have been supported by the decedent as part of his family. 11 C. J. 751 (2) B; 21 Cyc. 569, sec. 2, note 49; Peeler v. Peeler, 68 Miss. 141; Wilkins v. Briggs, 48 Tex. Civ. App. 598, 107 S.W. 140; Clements v. McKa, 110 S.W. 185; Brown v. Brown, 104 Ark. 313, 149 S.W. 330. (b) The word 'children" both in the popular and in the technical sense means descendants in the first degree, and does not include "grandchildren." 1 Boutvier's Law Dictionary on "Children" (15 Ed.) p. 310; Von Behrn v. Stoeppelmann, 226 S.E. 875; Lich v. Lich, 158 Mo.App. 413; Starrett v. McKim, 119 S.W. 824; Walker v. Vicksburg Ry. Co., 34 So. 749; Thomas v. Thomas, 53 So. 633; Palmer v. Horn, 84 N.Y. 516; Walter v. Truslow, 35 N.E. 955; Brown v. Brown, 98 N.W. 718. (c) Not only is the benefit of a homestead statute limited to children as thus defined -- that is, descendants in the first degree -- but the benefits of homestead to such children is not extended after majority, by reason of such child after majority being a dependant female or an imbecile. 21 Cyc. 586, notes 64 and 65. (2) At the time of the execution of the deed by the widow on April 8, 1913, both the children were more than twenty-one years of age, the youngest being then twenty-two. If the widow had any homestead, she had a perfect right to sell and convey such homestead, and by such deed this right passed to respondent Gorman, the grantee in such deed. Mark v. Heiss, 90 Mo. 578; Phillips v. Pearson, 172 Mo. 28. (3) Having conveyed her homestead, if she had any, to respondent before the administrator's sale, and the children being of age, there was no homestead when the land sold. There being no person entitled to homestead in the premises at the time this action was filed or at the time of the sale, no cause of action existed in favor of any person. Wilson v. Wilson, 255 Mo. 535; Denk v. Fiel, 249 Ill. 424; Londen v. Martindale, 67 N.W. 133. (4) Judgments of probate courts in administration matters are entitled to all the presumptions that attach to judgments of courts of general jurisdiction. One who is a party to an action in the probate court in which the right of homestead is available as a defense must interpose this defense, and if he fails to do so, the judgment rendered in such suit will bar his subsequent assertion of such right. 21 Cyc. 619; Wilson v. Wilson, 255 Mo. 528, 536; 18 Cyc. 797; Smith v. Black, 231 Mo. 690; McDonald v. McDonald, 242 Mo. 176; Desloge v. Tucker, 196 Mo. 587, 601; Higbee v. Bank, 244 Mo. 411, 424; Harter v. Petty, 266 Mo. 296, 303; Robbins v. Boulware, 190 Mo. 51; Covington v. Chamberlin, 156 Mo. 574; Sigmond v. Bebber, 73 N.W. 1027; Doran v. Kennedy, 141 N.W. 851; Doran v. Kennedy, 237 U.S. 362; Stone v. Elliott, 106 N. E. (Ind.) 710; Reinhart v. Seaman, 69 N.E. 847; Jarrell v. Cole, 215 F. 315. (5) The filing of a proper petition gives the probate court jurisdiction of the land, and notice to the parties in interest gives jurisdiction of the person. Grayson v. Weddle, 63 Mo. 523, 537; Pattel v. Thomas, 58 Mo. 163, 173; Overton v. Johnson, 17 Mo. 442, 450. (6) Administrator's sales (and all judicial sales for that matter) will be liberally construed. Tutt v. Boyer, 51 Mo. 425, 430; Thompson v. Pinell, 199 S.E. 1012; Noland v. Barrett, 122 Mo. 181, 190. (7) In order for a judicial sale to be subject to collateral attack, as sought in this case, the lack of jurisdiction must appear from the face of the record. Covington v. Chamberlin, 156 Mo. 574; Robbins v. Boulware, 190 Mo. 33, 52. (8) It will not be disputed that an appeal lies both from the judgment of the probate court, ordering the sale of the land, and from the final judgment approving the sale. Desloge v. Tucker, 196 Mo. 587; Tutt v. Boyer, 51 Mo. 425, 430; Thompson v. Pinell, 199 S.W. 1011; Price v. Realty Assn., 101 Mo. 107, 118; Rogers v. Johnson, 125 Mo. 202, 215; 18 Cyc. 794.
Appeal from the Circuit Court of Wright County. Suit to quiet title to ninety-five acres of land in said county. The petition is in the regular form to quiet title at law; it also contains a second count in ejectment.
The answer, besides a general denial, after admitting possession and claim of ownership, sets up that defendant purchased the property at a sale made by the administratrix of the estate of George Manear at the February term, 1913, of the probate court of said county, to pay the debts of the deceased, under due and regular orders and proceedings after due notice to all parties interested in said estate, including plaintiffs, who were personally served with notice of such proceedings by the sheriff as required by law. That at such sale the defendant was the highest and best bidder and purchased the property for $ 880, which he paid to the administratrix and received a regular administratrix's deed therefor. That said sale was duly confirmed and is binding upon the plaintiffs as res adjudicata, and the orders and judgment of said court are pleaded in bar of all claims of the plaintiffs. It is further alleged, by way of estoppel, that the said estate received the benefit of the money paid by defendant, and defendant afterwards took possession and made valuable improvements upon said land with the knowledge and consent of plaintiffs.
The reply put the allegations of the answer in issue.
There is substantially no dispute as to the salient facts. The plaintiffs, Allie Dennis and Marie Hearold, are the children and the minor plaintiff, Leon England, is the grandchild, and they constitute the only heirs of George Manear, who died October 15, 1907. At and a number of years before his death, he was the owner of the land and occupied it with his family as a homestead. It did not exceed $ 1500 in value. His family, when he died, consisted of the plaintiffs, and his wife, Laura Manear. The widow was appointed administratrix in 1908, but failing and refusing to apply for and procure an order of sale to pay debts proved up against the estate, the creditors filed such petition, and after the order of sale was made in 1911 and renewed for several terms, the property was sold at the February term, 1913, and defendant became the purchaser. The proceedings were all regular, in the usual form for the sale of real estate of the deceased to pay his debts. The plaintiffs did not appear at any stage of the proceedings or take any notice thereof. The debts for which the land was sold were not charged against it in the lifetime of the decedent, and were not contracted before the homestead was acquired. About a year before the sale, or in 1912, the widow and two daughters and granddaughter, who up to that time continued to reside on the homestead, removed to Springfield, Missouri, where they resided at the time of the sale. The children and grandchild received none of the proceeds of the...
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