Hufschmidt v. Gross

Decision Date12 December 1892
Citation20 S.W. 679,112 Mo. 649
PartiesHUFSCHMIDT et al. v. GROSS et al.
CourtMissouri Supreme Court

5. The children did not bring an action to enforce their rights until about 10 years after the death of their father, and several years after some of them had come of age. Held, that it was proper for the decree to divide the rents and profits of the homestead estate, and to specify the amount due each plaintiff, since those who had reached their majority when the decree was rendered had a right to receive what they had been deprived of.

6. Defendant, who was the purchaser from the administrator, claimed that the court in its decree should have ordered the homestead transferred to him on his payment of the value thereof, or that he, at the option of plaintiffs, should transfer his interest to them on the payment of the value of such interest, or that the court should have ordered a sale of the premises, and then apportioned the proceeds. Held, that the court was not restricted to these methods, in view of Code, § 2698, providing that in such cases the court may make all such orders as shall be equitable or useful.

Appeal from circuit court, Franklin county; RUDOLPH HIRZEL, Judge.

Bill by George Hufschmidt and others against George Gross and others to establish a homestead right in favor of plaintiffs in certain property, and for an accounting of the rents and profits of such homestead interest. From a decree in favor of plaintiffs, defendants appeal. Affirmed.

T. A. Lowe, for appellants. L. F. Parker, for respondents.

BLACK, J.

This is a suit to establish a homestead right in favor of the plaintiffs in the property described in the petition, and for an accounting of the rents and profits of such homestead interest. The material agreed facts are these: Gustavus Hufschmidt died on the 26th September, 1879, leaving a widow and a number of children by his then and by a former wife. Two of the children by the former wife, namely, George and Alice, and one by the second wife, named Lulu, were minors. At the time of his death and prior thereto he owned a lot in the town of Pacific, in Franklin county, on which there was a brick building, the upper story of which was used by him as his residence, and the lower story was used for business purposes. In August, 1880, his widow married Phillip Kaes. Immediately after her marriage to Kaes she left the property before mentioned, taking with her Alice and Lulu, and thereafter resided with her second husband at his home in St. Louis county. The administrator of the Hufschmidt estate sold the property, to pay debts of the deceased, to the defendant George Gross, and made to him a deed, dated the 10th March, 1882, at which date Gross took, and has ever since held, exclusive possession of the property so purchased. The three children, George, Alice, and Lulu, the plaintiffs in this case, were still minors at the date of the administrator's deed. George reached the age of majority on the 10th November, 1885, and Alice on the 10th April, 1889, and Lulu will attain that age the 10th January, 1897. This suit was commenced against Gross in March, 1889. Kaes and wife were made defendants, but they filed no answer. On the 21st January, 1890, the court made an interlocutory decree declaring the plaintiffs entitled to a homestead in the premises; that they had been deforced therefrom by the defendant Gross since 10th March, 1882; that the property did not exceed in quantity, but did in value, the homestead interest; and that the homestead could not be severed. The court at the same time directed a reference for the purpose of taking an account of the rents and profits. It was agreed before the referee that the property was of the value of $4,500, and it may be stated here that the homestead exemption in towns like Pacific cannot exceed $1,500 in value. The referee ascertained the gross rental value of the property, and from that deducted the taxes, repairs, and necessary improvements. He fixed the net rental value from the 10th March, 1882, to the date at which George became of age at $2,781, and from that time until Alice became of age at $2,057, and from that date to the date of the interlocutory decree at $532, and from thence on until the other plaintiff would become of age at $490 per annum. He charged defendant with one third of the above amounts; that is to say, in the proportion of $1,500, the value of the homestead, to $4,500, the value of the entire property; all of which the court approved, and gave judgment accordingly.

1. The first, and by far the most important, question in this case is whether the plaintiffs have a homestead in the premises in question. The contention of the defendant Gross is twofold. He insists — First, that the widow abandoned her homestead in this property when she married Kaes and took up a permanent residence with him in another county; second, that the abandonment of the homestead by her was an abandonment of it by the minor children. The first of these propositions was affirmed in Kaes v. Gross, 92 Mo. 647, 3 S. W. Rep. 840, on the same facts now before us; and both propositions are clearly asserted in several cases decided by the supreme court of Illinois. Buck v. Conlogue, 49 Ill. 391; Shepard v. Brewer, 65 Ill. 383. See, also, Wright v. Dunning, 46 Ill. 271, and Clubb v. Wise, 64 Ill. 157. The statute of that state, however, provides: "Such exemption shall continue, after the death of such householder, for the benefit of the widow and family, some or one of them continuing to occupy such homestead, until the youngest child shall become twenty-one years of age, and until the death of such widow." 1 St. Ill. (D. B. Cooke & Co.'s Ed. 1858.) The statute of that state, it will be seen, simply continues the exemption, and that, too, on the condition of a continued occupancy of the property. It is so unlike the statute of this state that the adjudications there can be of no authority here on the question now in hand. This will be clear when we come to examine the statute of this state. The first section of the homestead law — being section 2689, Rev. St. 1879 — exempts the "dwelling house" and appurtenances, not exceeding the specified amount and value, which are "used by such housekeeper or head of a family as such homestead," from attachment and execution. Thus far the statute is simply...

To continue reading

Request your trial
36 cases
  • Scott v. Royston
    • United States
    • Missouri Supreme Court
    • November 27, 1909
    ...vested the same in his widow and minor children, and partition will not lie until the youngest child becomes of age. Hufschmidt v. Gross, 112 Mo. 649, 20 S. W. 679; Brewington v. Brewington, 211 Mo. 49, 109 S. W. 723; Quail v. Lomas, 200 Mo. 674, 98 S. W. 617; Rhorer v. Brockhage, 86 Mo. 54......
  • Borchers v. Borchers
    • United States
    • Missouri Supreme Court
    • February 7, 1944
    ...Haggard v. Haggard, 233 S.W. 18; Prouty v. Hall, 31 S.W.2d 103. (13) A homestead estate is not subject to partition. Hufschmidt v. Gross, 112 Mo. 649, 20 S.W. 679. The court erred in ordering, adjudging and decreeing the sale of the real property described in plaintiff's petition at partiti......
  • Scott v. Royston
    • United States
    • Missouri Supreme Court
    • November 27, 1909
    ...v. Childers, 156 Mo. 342; In re Powell's Estate, 157 Mo. 155; Keene v. Wyatt, 160 Mo. 9; Banking Co. v. Brown, 165 Mo. 39; Huffschmidt v. Goss, 112 Mo. 649; v. Cooper, 203 Mo. 295; Hardy v. Atkinson, 136 Mo.App. 595; Stevens v. Stevens, 172 Mo. 24; Rhorer v. Brockhage, 86 Mo. 544; Brewingto......
  • Borchers v. Borchers
    • United States
    • Missouri Supreme Court
    • February 7, 1944
    ...Haggard v. Haggard, 233 S.W. 18; Prouty v. Hall, 31 S.W. (2d) 103. (13) A homestead estate is not subject to partition. Hufschmidt v. Gross, 112 Mo. 649, 20 S.W. 679. (14) The court erred in ordering, adjudging and decreeing the sale of the real property described in plaintiff's petition at......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT