Freund v. McCall

• Citation: 73 Mo. 343
• Parties: FREUND et al., Appellants, v. MCCALL.
• Decision Date: 30 April 1881
• Court: United States State Supreme Court of Missouri

73 Mo. 343

FREUND et al., Appellants,

v.MCCALL.

Supreme Court of Missouri.

April Term, 1881.

Appeal from Benton Circuit Court.--HON. F. P. WRIGHT, Judge.

AFFIRMED.

J. H. Lay with Smith & Shirk for appellants.

The widow was not entitled to a homestead. The whole scope and aim of the homestead law seems to be to protect a homestead from creditors. It only provides for setting apart the homestead in one case, viz: When it becomes necessary to sell the real estate of the deceased for payment of debts. Any other construction of the act would have the effect to entirely abrogate, or greatly modify, the statutes of wills, of descent and distribution and of dower even, in all cases where the deceased dies without being indebted, as well as where he dies indebted. In such case, where he left no lands besides the homestead, the statute of descent and distribution would have no effect; and where he left other lands that statute would be greatly modified in its operation by the carving out of the homestead from the whole estate. Any other construction would also bring the homestead law in conflict with section 21, page 542, Wagner's Statutes, (R. S., 2205,) which provides that the widow shall enjoy the mansion house and plantation of the deceased husband until her dower is assigned. These statutes have remained unchanged since the passage of the homestead law. And if the legislature had intended that they should thus be modified or superseded in all cases, they would certainly, by this time, have been amended to conform to such intention. No such change has been attempted, nor does the homestead law any where attempt to fix and adjust the rights of the widow and heirs of a party who dies leaving his lands without any liability to be sold for his debts.

Barry & Campbell and M. A. Fyke for respondents.

HOUGH, J.

This was a suit in partition brought in 1876, by the heirs of Jacob Freund, who died in 1871, seized of about 900 acres of land, 160 acres of which he owned and occupied as a homestead, against Jane McCall, who was the widow of Jacob Freund, and who had intermarried with the defendant, James McCall. No part of the lands of the deceased was required for the payment of his debts, he having left personal property more than sufficient for that purpose, and at the institution of this suit his estate had been fully administered. Some of the plaintiffs were minors. The circuit court set apart to Jane McCall an estate in fee in ninety acres of the 160 acres claimed as a homestead, and gave to each of the minor heirs, during their minority the right to the joint use and occupancy thereof, gave to the widow no dower, and divided the remainder of the land equally among the heirs.

The only question presented for decision is, whether any homestead can be set apart to the widow and infant children, when no part of the real property of which the deceased died seized, is needed for the payment of debts. It is conceded that under the decision of this court in Skouten v. Wood, 57 Mo. 380, and the statute in force at the time of the death of Jacob Freund, the widow was...