In re The Estate of Jacob Koehler v. Gray

• Decision Date: 06 April 1918
• Docket Number: 21,471
• Citation: 102 Kan. 878,172 P. 25
• Parties: In re THE ESTATE OF JACOB KOEHLER, Deceased. (ANTOINETTE LOUISE KOEHLER, Appellant, v. F. H. GRAY, as Administrator, etc., Appellee.)
• Court: Kansas Supreme Court

172 P. 25

102 Kan. 878

In re THE ESTATE OF JACOB KOEHLER, Deceased. (ANTOINETTE LOUISE KOEHLER, Appellant, v. F. H. GRAY, as Administrator, etc., Appellee.)

No. 21,471

Supreme Court of Kansas

April 6, 1918

Decided January, 1918.

Appeal from Miami district court; JABEZ O. RANKIN, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. HOMESTEAD--Findings--No Abandonment. Findings that the claimant of a homestead had not abandoned her residence in the city in which the property in question is situated, and that she considered that city as her residence, held to imply that she intended to return to the property and occupy it as a home.

2. SAME--Death of Both Parents--Homestead Exempt to Unmarried Daughter. Property occupied as the homestead of the owner and his family remains exempt from sale for the payment of his debts after the death of himself (intestate) and his wife, so long as an unmarried daughter of full age, who had lived with him as a part of his family, continues her residence thereon without interruption. Battey v. Barker, 62 Kan. 517, 64 P 79, overruled.

3. SAME--Taken by Right of Eminent Domain--Disposition of Proceeds Among Heirs. Where the daughter of an intestate occupies his homestead under such circumstances as to render it exempt from liability for his debts, and the property is taken for public purposes by eminent domain, she is entitled to compensation, not only for the share of the property owned by her, but also for the right to occupy the whole.

Edwin S. McAnany, Maurice L. Alden, Thomas M. Van Cleave, all of Kansas City, and Frank L. Barry, of Kansas City, Mo., for the appellant; Samuel Maher, of Kansas City, of counsel.

R. E. Coughlin, and Edward H. Coughlin, both of Paola, for the appellee.

OPINION

MASON, J.:

Jacob Koehler died intestate in May, 1914, owning a house and a tract of land in Paola, occupied as a homestead by himself, his wife, and an unmarried daughter, Antoinette Louise Koehler, then twenty-one years old. He was survived by five other children, all of full age, having homes elsewhere. His widow died in August, 1916. In December, 1916, the administrator of his estate applied for an order from the probate court for the sale of the property referred to, in order to apply the proceeds to the payment of his indebtedness, which exceeded the other assets by about $ 11,000. The daughter, Antoinette Louise Koehler, objected to the sale on the ground that the property was still occupied by her, and was exempt by reason of its character as a homestead. The probate court granted the order, and on an appeal to the district court its decision was affirmed. The daughter now appeals to this court.

1. The administrator contends that upon any theory of the homestead law the judgment must be affirmed, because at the time the order of sale was granted the appellant had ceased to occupy the property as a home. The district court made these findings bearing upon the matter:

"After the death of Jacob Koehler the widow and the appellant continued for a time to occupy the homestead for about a year, after which they rented the homestead and went to New York City temporarily, partly on account of the health of the mother and partly that the appellant might study music. They did not intend to establish a permanent home in New York.

"The widow died August 22, 1916, and soon after the household goods that were still in the homestead were divided up among the children, the appellant retaining a portion of them, but they were all removed from the real estate in question, and the appellant returned to New York in October, 1916, for the purpose of continuing her musical studies.

"The appellant, Antoinette Koehler, does not intend to remain permanently in New York, but intends to go elsewhere, probably to Kansas City, for the purpose of teaching music, but considers Paola as her place of residence.

"At the time of the filing of this application in the Probate Court the appellant, Antoinette Koehler, had not abandoned her residence in Paola, Kansas."

The administrator insists that these findings merely show that the appellant retains her legal residence in Paola, and do not necessarily imply that she intends to make her home in the house where the family formerly lived. It is true that no explicit statement is made that she has had, and still retains, such an intention, but we think the findings that she considers Paola as her residence and had not abandoned her residence there must be given that effect. There is no suggestion that she ever had a residence in Paola elsewhere than on the property in question. That at one time was her residence. If her legal residence remained in Paola, it remained at the old home. The findings that she considered Paola her residence and had not abandoned her residence there must be regarded as referring to the property in question, and as implying an intention to return thereto; otherwise they would have no bearing upon the issues to be determined. If the trial court had been of the opinion that the appellant did not (at the time the controversy arose) intend to reoccupy the house, a finding would naturally have been made that she had abandoned the homestead as such, thus finally disposing of her claim of exemption.

2. The question for determination, therefore, is whether property occupied as the homestead of the owner and his family remains exempt from sale for the payment of his debts after the death of himself (intestate) and his wife, so long as an unmarried daughter of full age, who had lived with him as a part of his family, continues her residence thereon without interruption. The trial court followed the decision of this court in Battey v. Barker, 62 Kan. 517, 64 P. 79, in which substantially the same question is explicitly answered in the negative, and unless that case is overruled the judgment here must be affirmed. In that case it was suggested that a homestead necessarily loses its exempt character whenever it is liable to partition, and Dayton v. Donart, 22 Kan. 256, is cited in support of the suggestion. There, however, it was the abandonment of occupancy that rendered the property liable to sale. Actual partition does not necessarily destroy all homestead exemption (Trumbly v. Martell, 61 Kan. 703, 705, 60 P. 741; Cross v. Benson, 68 Kan. 495, 505, 75 P. 558), and mere liability to partition should not be deemed to affect it.

The decision in the Battey-Barker case, however, was largely influenced by the view that, inasmuch as "the homestead laws apply only to families, and not to single individuals and apply only where the family occupies the homestead as a residence" (Farlin v. Sook, 26 Kan. 397, 404), the death of the father, leaving of the former members of his family only an...