In re Estate of Powell

• Citation: 57 S.W. 717,157 Mo. 151
• Parties: IN RE ESTATE OF E. W. POWELL, Deceased; ENGLE, Administrator, and DAVIDSON, Appellants; Heirs of E. W. POWELL, Respondents
• Decision Date: 12 June 1900
• Court: United States State Supreme Court of Missouri

57 S.W. 717

157 Mo. 151

IN RE ESTATE OF E. W. POWELL, Deceased; ENGLE, Administrator, and DAVIDSON, Appellants; Heirs of E. W. POWELL, Respondents

Supreme Court of Missouri, First Division

June 12, 1900

Appeal from Dallas Circuit Court. -- Hon. Argus Cox, Judge.

Affirmed.

John S Haymes and W. R. Self for appellants.

Even under the act of 1895, in relation to homesteads, the estate of a deceased person has an interest in any land of which the ancestor died seized, subject to any right of homestead which may exist therein, and, independent of the homestead law, any interest, however small, of the estate in any land may be sold by the administrator for the payment of debts. 2 Woerners Am. Law Adm. (2 Ed.), sec. 417, p. 1042; R. S. 1899 sec. 146; R. S. 1899, sec. 2908; Valle v. Bryan, 19 Mo. 424; Howell v. Jump, 140 Mo. 441; Hand v Motter, 73 Mo. 457. That such land may be sold subject to the homestead right, is held in Lunsford v. Jarrett, 2 Lea. (70 Tenn.) 579; Evans v. Evans, 13 Bush. (76 Ky.) 587; McCaleb v. Burnett, 55 Miss. 83; Judge of Probate v. Simmonds, 46 N.H. 363; Allensworth v. Kimbrough, 79 Ky. 332.

C. H. Scott, J. W. Miller and W. C. Hawkins for respondents.

(1) The right of administrator to sell homestead for debts prior to amendment of 1895 was derived solely from the homestead law itself, and not from any law of administration or of descent and distribution. R. S. 1889, sec. 5439; Skouten v. Wood, 57 Mo. 381; Poland v. Vesper, 67 Mo. 727; French v. Stratton, 79 Mo. 560. (2) The right of administrator to sell homestead was given by amendment of homestead law of 1875. Previous to that time the homestead descended to wife in fee. Wagner's Statute, sec. 5, p. 698; Skouten v. Wood, supra; French v. Stratton, supra; Freund v. McCall, 73 Mo. 343; Canole v. Hurt, 78 Mo. 649. (3) Law of 1895 re-enacts law of 1865, except as to the line of descent. Sec. 3620, R. S. 1899. The decisions construing this section are applicable to the present law, so far as they effect the right of the administrator to sell the homestead. Hufschmidt v. Gross, 112 Mo. 649. (4) The law of 1895 is not retroactive as to prior creditors, as they had no rights in homestead, before its passage, nor in the residuary estate. Harte v. Leete, 104 Mo. 315; Bank v. Guthrey, 127 Mo. 189; Kendall v. Powers, 96 Mo. 142; Holland v. Kreider, 86 Mo. 58; Davis v. Land, 88 Mo. 436.

OPINION

VALLIANT, J.

This is a controversy arising in a proceeding originating in the probate court of Dallas county upon the petition of the administrator to sell the land, including the homestead, of which the intestate died seized.

The petition is in due form and the proper parties were before the court, the minor heirs being represented by their guardian.

The facts admitted at the trial in the circuit court, to which the cause went by appeal, were that the estate consisted of about $ 150 worth of personal property and a small tract of land in Dallas county on which the intestate had resided for twenty years or more at the time of his death, which occurred in January, 1896; that he left a widow and several children, some adults and some minors, the youngest of whom would not attain her majority until 1913; that debts to the amount of $ 1,629.96 were classified and allowed against the estate, and remain unpaid, of which $ 1,215.80 was a judgment in favor of one Davidson obtained against the deceased in his lifetime on two promissory notes made in 1890; that upon the petition of the widow commissioners had been duly appointed by the probate court who had set off a certain portion of the land valued at $ 1,500 to her as a homestead for herself and the minor children, after which she had sold her interest in the homestead to the judgment creditor; that there was not sufficient personal property and real estate outside of the homestead to pay the debts and a sale of all the real estate subject to the homestead interest would be required for that purpose. The prayer of the petition was that all the land of which the intestate died seized be sold subject to the homestead interest. The probate court ordered a sale of the land as prayed, from which order the minor heirs appealed to the circuit court. The judgment of the circuit court was that the petition in so far as it prayed for a sale of all the land subject to the homestead interest, be denied, and that so much only as was not embraced in the homestead be sold, and from that judgment the administrator has appealed to this court.

The single question presented by this record is, is the land belonging to an intestate liable to be sold during the life of the widow or minority of the heir, subject to their homestead rights, to pay estate debts?

It is insisted in behalf of appellant that this question must be answered in the light of the statute as it was when the debts were contracted in 1890, that is, as it appears in section 5439, Revised Statutes 1889, uninfluenced by the act of 1895, now section 3620, Revised Statutes 1899.

Under the homestead law as it appears in General Statutes 1865, p 450, and interpreted by former decisions of this court, the title to the land embraced in the homestead passed on the death of the intestate to his widow and upon her death to her heirs. So the law remained until 1875, when it was amended as it is in section 5439, Revised Statutes 1889, so as to provide that upon the death of the intestate the homestead should vest in the widow and minor children, etc., "subject to the laws relating to devise, descent, dower, partition and sale for the payment of debts against the estate of the deceased." This had the effect to divert the course of descent of the fee in the homestead land from the widow and her heirs and cast it on the heirs of the intestate and render it subject sub modo to the payment of his...