In re Estate of Boward

• Decision Date: 26 May 1921
• Parties: IN RE ESTATE OF C. F. BOWARD: O. F. LIBBY, Administrator, v. H. W. BOWARD, Appellant
• Court: Missouri Supreme Court

231 S.W. 600

288 Mo. 148

IN RE ESTATE OF C. F. BOWARD: O. F. LIBBY, Administrator, v. H. W. BOWARD, Appellant

Supreme Court of Missouri, Second Division

May 26, 1921

Appeal from Linn Circuit Court. -- Hon. Fred Lamb, Judge.

Reversed.

Bailey & Hart for appellant.

(1) The death of Charles F. Boward occurred in 1900 and the petition for sale was not filed until 1918, hence the matter was so stale that the court should not have considered the petition for sale. Gunby v. Brown, 86 Mo. 253. (2) The agreed statement of facts shows that Charles F. Boward died in the year 1900; hence Section 3620, R. S. 1899 (being the homestead law enacted in 1895) would control and fix the rights of the parties in this action, and the appellant contends that under this section the real estate in question passed on the death of the widow of Charles F. Boward to the heir of Charles F. Boward and did not become subject to sale for the payment of the debts of Charles F. Boward. Armor v. Lewis, 252 Mo. 578; Keene v. Wyatt, 160 Mo 1. (3) The homestead law is a complete code in itself and it is not necessary to refer to the statutes of descent for a settlement of the question of the disposition of a homestead. Armor v. Lewis, 252 Mo. 578. (a) This court has uniformly ruled that under the Act of 1895 the homestead cannot be sold subject to the rights of the widow and minor children. Brayless v. Cox, 153 Mo. 242; In re Estate Powell, 157 Mo. 151; Balance v. Gordon, 247 Mo. 119; Armor v. Lewis, 252 Mo. 568. (b) The courts of other States having similar statutes hold that the homestead passes to the heir freed of the debts of the ancestor. In re Coulson, 95 Iowa 696, 64 N.W. 755; Stewart v. Black, 45 S.C. 61, 22 S.E. 774; Scott v. Cunningham, 60 Texas, 566; Miller v. Finnegan, 6 L.R.A. 613.

C. C Bigger and O. F. Libby for respondent.

(1) Upon the death of Charles F. Boward in the year 1900, his homestead in the property which he then owned, was, by the homestead statute then in force, extended in his widow and minor son during the minority of the son and the life or widowhood of the widow, and upon the termination of the homestead interest, by the minor arriving at his majority and the death of the widow, the homestead property passed to the heirs of the said Charles F. Boward, by descent, subject to the payment of demands proven and allowed against his estate in the course of the administration thereof. The widow died in the year 1918, and the son had arrived at his majority a number of years prior to her death. Therefore, upon the death of the widow, the homestead was terminated and the real estate became assets for the payment of demands proven and allowed against the estate of said Charles F. Boward, and the order of sale made by the Probate Court, after the death of the widow, was fully warranted by the homestead statute of 1895, which governs in this case. Sec. 3620, R. S. 1899; Laws 1895, p. 185; Poland v. Vesper, 67 Mo. 727; Broyles v. Cox, 153 Mo. 242; Keen v. Wyatt, 160 Mo. 1; Balance v. Gordon, 247 Mo. 119; Armor v. Lewis, 252 Mo. 568. (2) Since, under the homestead statute of 1895, Sec. 3620, R. S. 1899, an application for an order to sell, and the sale of the homestead property to pay debts of the deceased, was postponed until after the death of the widow and the homestead interest thereby terminated, the Yagel demand and the order of the Probate Court for the sale of the real estate to pay the same was not stale, and administrator was not guilty of laches in awaiting the termination of the homestead interest before making application for said order of sale, as he acted as soon as the statute permitted. Authorities, supra; Barlow v. Clark 67 Mo.App. 340.

RAILEY, C. White and Mozley, CC., concur.

OPINION

RAILEY, C.

Both counsel for appellant and respondent have filed clear and intelligent statements in this court, and there appears to be no disagreement between them as to the facts. We accordingly adopt respondent's statement, which reads as follows:

"Charles F. Boward died, intestate, in Linn County, Missouri, on August 8, 1900, leaving surviving him, Sophrona E. Boward, his widow, and one minor son, H. W. Boward, the appellant herein, and seized and possessed of a house and lot in the City of Brookfield, in said Linn County, which premises then as well as now, was of about the value of $ 1000. The title to said premises was acquired and the deed thereto recorded some time prior to the death of said Boward. From the time said premises were acquired and up to the time of the death of said Boward, he, with his wife and minor son, occupied the same as a homestead, and after his death the same passed to and was occupied as a homestead by the widow and minor son until the son attained his legal majority, and thereafter by the widow until her death which occurred in August, 1918. After the homestead was acquired and the deed thereto recorded, the said Charles F. Boward became indebted to one Con Yagel, which indebtedness was still outstanding and unpaid at the time of the death of said Boward in the year 1900.

"After the death of said Boward, the respondent herein, O. F. Libby, was by the Probate Court of Linn County, Missouri, appointed administrator of the estate of the deceased, duly qualified and since which time has been, and is now so acting. The administrator upon assuming the duties of his office ascertained that the deceased left no personal estate except his household goods and furniture, which were claimed by the widow and were turned over to her as her absolute property. It was also ascertained by the administrator that the said Boward owned no real estate at the time of his death except the house and lot which was then his homestead.

"The debt due from the deceased to the said Con Yagel, was duly presented to and allowed by the Probate Court as a demand against the estate of said deceased and assigned to the fifth class of demands. There were no other debts or demands allowed against said estate. The administrator believed that under the homestead law then in force (Laws of 1895, page 185, Sec. 3620, R. S. 1899), the sale of said property to pay said allowed demand would have to be postponed until the termination of the homestead therein, by the minor reaching his majority and the death of the widow.

"The widow died at Linn County, Missouri, in August, 1918, and the son, who is the appellant herein, having become twenty-one years of age some years prior to the death of his mother, the homestead interest in said premises was thereby terminated, and soon thereafter the administrator filed his petition in the Probate Court for an order of sale of said real estate for the purpose of paying the demand of Yagel. The petition for the sale was duly sustained and the sale ordered by the Probate Court. From this order, the said H. W. Boward, appealed to the Circuit Court of Linn County, Missouri, and upon a hearing of the matter in that court, the order of sale made by the Probate Court was in all things sustained, and the appellant brings the case to this court by appeal. It is conceded by the appellant that the proceedings in the Probate Court for the sale were in all respects regular and are not called in question."

Letters of administration were granted to Mr. Libby by the Probate Court of Linn County, Missouri, on September 13, 1905.

The demand of Con Yagel was allowed in the Probate Court on December 13, 1905, for $ 428.55.

A petition for the sale of the property in controversy was filed in the Probate Court of Linn County, Missouri, at the November Adjourned Term, 1918. The order of sale was made by the Probate Court on February 24, 1919.

Appellant alleges in his statement, that no question arises as to the regularity of the proceedings, and all the facts are admitted in the record, so that there are presented on this appeal but two questions: First; was the claim so stale as to preclude the order of sale? Second; did the property which was the homestead of Charles F. Boward in his lifetime, upon the death of his widow, become subject to the payment of his debts or immediately pass to his son, Henry F. Boward?

Judgment was entered in behalf of respondent, on June 25, 1919. Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, and the cause duly appealed by him to this court.

I. It is conceded, that Charles F. Boward, the owner of the land in controversy, died on August 8, 1900; at the time the Con Yagel debt in question was contracted, as well as prior thereto, said Charles F. Boward, with his wife and this defendant, who was then a minor, held and occupied the land aforesaid, worth about $ 1000, as their homestead; that the Yagel debt was not secured by a lien of any kind on said land.

It is contended by both parties to this litigation, that the rights of all the parties in interest, must be determined by the law which was in force on August 8, 1900, when Charles F. Boward died. This contention is sound and supported by our former rulings, some of which are as follows: Brown v. Brown's Admr., 68 Mo. 388; Register v. Hensley, 70 Mo. 189; Davidson v. Davis, 86 Mo. 440; Burgess v. Bowles, 99 Mo. 543, 12 S.W. 341; Quinn v. Kinyon, 100 Mo. 551, 13 S.W. 873; Linville v. Hartley, 130 Mo. 252, 32 S.W. 652; Keene v. Wyatt, 160 Mo. 9; Brewington v. Brewington, 211 Mo. 48, 109 S.W. 723; Bushnell v. Loomis, 234 Mo. 371 at 384, 137 S.W. 257; Balance v. Gordon, 247 Mo. 119, 152 S.W. 358; Wright v. Hetherlin, 277 Mo. 99, 209, 209 S.W. 871 S.W. 871; Regan v. Ensley, 222 S.W. 774.

In Balance v. Gordon, 247 Mo. 119, 152 S.W. 358, Judge Lamm, in clear and explicit language, declared the law of this State, in respect to above matter, as follows:

"Under the doctrine...