Jehu v. Jehu

Decision Date07 January 1922
Docket Number23,382
Citation203 P. 712,110 Kan. 210
PartiesROY JEHU, Appellee, v. LETTIE U. JEHU, Appellant
CourtKansas Supreme Court

Decided January, 1922

Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

HOMESTEAD--Occupied by Widow of Intestate Husband--Subject to Partition at Suit of a Direct Heir. When the owner of a homestead dies intestate, leaving as his only heirs his widow and an adult son by a former marriage, the widow cannot successfully resist partition of the homestead in an action by the son; and the fact that she continues to reside on the homestead and the son resides elsewhere is immaterial.

Elmer E. Martin, of Kansas City, for the appellant.

W. J. McCarty, of Kansas City, for the appellee.

OPINION

DAWSON, J.:

This appeal presents a simple question under the homestead law.

The plaintiff, a man of 32 years, is the son of the late C. P. Jehu of Wyandotte county. The defendant is his stepmother, and widow of the elder Jehu who died intestate.

The plaintiff brought partition of all the property inherited by him and defendant from C. P. Jehu. Part of the property was the homestead residence of his deceased father. The defendant continues to reside thereat. The plaintiff resides elsewhere.

In her answer, defendant resisted partition of the homestead, alleging--

"That the homestead herein mentioned is not subject to partition but is the homestead of this defendant, and she is guaranteed the use and occupancy of said premises as a homestead by the constitution of the State of Kansas."

Plaintiff lodged a demurrer to the above-quoted portion of the answer. The demurrer was sustained, and defendant appeals.

Can there be any doubt about the correctness of this ruling? Does the fact that a son has attained his majority and no longer dwells under his father's rooftree diminish his right as a member of his father's family to share in the possession of the family homestead and to demand partition thereof? This question must be answered in the negative. The family homestead is not subject to partition at the suit of collateral heirs (Breen v. Breen, 102 Kan. 766, 173 P. 2), nor at the suit of mere devisees (Campbell v Durant, ante, p. 30, 110 Kan. 30, 202 P. 841), while such homestead is still occupied by some member of the family of the deceased owner; but among themselves the rights of the...

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6 cases
  • Cole v. Coons
    • United States
    • Kansas Supreme Court
    • April 5, 1947
    ...of majority.' (Emphasis supplied.) The corresponding statute and source of prior law which was in effect before its repeal and when Jehu v. Jehu, supra, decided, is now shown as G.S.1935, 22-105. It reads: 'If the intestate left a widow and children, and the widow again marry, or when all o......
  • Hazelbaker v. Reber
    • United States
    • Kansas Supreme Court
    • March 12, 1927
    ... ... different rule of law touching necessary parties than the one ... just announced. (Jehu v. Jehu, 110 Kan. 210, 203 P ... 712, and citations; Overlander v. Overlander, 115 ... Kan. 478, 223 P. 304, and citations.) ... It ... ...
  • Barnes v. Barnes
    • United States
    • Kansas Supreme Court
    • December 8, 1934
    ... ... so that he may enjoy his interest in severalty must be found ... in our statutes. Jehu v. Jehu, 110 Kan. 210, 203 P ... 712; Overlander v. Overlander, 115 Kan. 478, 223 P ... 304; Hazelbaker v. Reber, 123 Kan. 131, 136, 254 P ... ...
  • Foy v. Greenwade
    • United States
    • Kansas Supreme Court
    • April 8, 1922
    ...attorneys down to recent date. (Newby v. Anderson, 106 Kan. 477, 188 P. 438; Campbell v. Durant, 110 Kan. 30, 202 P. 841; Jehu v. Jehu, 110 Kan. 210, 203 P. 712.) But may be unnecessary to rest our judgment on the disputed sufficiency of the allegations of fraud or on the evidence of fraud.......
  • Request a trial to view additional results
1 books & journal articles
  • Kansas Homestead Law
    • United States
    • Kansas Bar Association KBA Bar Journal No. 65-04, April 1996
    • Invalid date
    ...Coons, 162 Kan. 624, Syl. ¶ 2, 178 P. 2d 997 (1947). [FN341]. Cole, 162 Kan. at Syl. ¶ 4; Curry, 194 Kan. at 725. [FN342]. Jehu v. Jehu, 110 Kan. 210, 203 P. 712 (1922). [FN343]. See also Cole, 161 Kan. 332. [FN344]. 81 Kan. 675, 107 P. 228 (1910). [FN345]. Newby v. Anderson, 106 Kan. 477, ......

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