Kaes v. Gross

• Decision Date: 28 February 1887
• Parties: KAES and others v. GROSS and others.
• Court: Missouri Supreme Court

3 S.W. 840

92 Mo. 647

KAES and others v. GROSS and others.

Supreme Court of Missouri.

February 28, 1887.

1. HOMESTEAD — WIDOW — ABANDONMENT.

Where a widow remarried, and removed with her children and household goods from the homestead which she occupied as widow, to the home of her second husband, in another county, and resided there four years, with no special intention of returning, held, she could not afterwards claim the homestead, as, notwithstanding her coverture, the intention not to return affects her right, and her continued absence constitutes an abandonment, just as if she were sui juris.¹

2. SAME — HOW LOST — DEVISE.

A devise by a husband to his wife is not to be considered as in lieu of her right to homestead; Rev. St. Mo. § 2693, expressly providing that the power of devise shall not extend to homestead, and section 2199 providing that a devise shall be in lieu of dower, but omitting any such provision as to homestead.

Appeal from circuit court, Franklin county.

Kiskaddon, Gallenkamp & Ryors, for appellant. T. A. Lowe, for respondents.

SHERWOOD, J.

The object of this suit is the assertion of a homestead and dower right on the part of Emilie Kaes in certain property in Pacific, Franklin county, Missouri, on the corner of St. Louis street and Adelaide avenue, estimated to be worth from $4,000 to $6,000. The petition was filed April 25, 1883, and the trial occurred May 30, 1884. On June 23, 1874, Gustavus Hufschmidt, with his family, lived on the property in question as his homestead. On the date last mentioned, Hufschmidt and his first wife executed and delivered to Franklin county their school mortgage, conveying said property, to secure the payment of the sum of about $1,000. His first wife bore him several children, who, with one exception, are still minors. She died, and on the fourth of August, 1875, Hufschmidt married Emilie, the plaintiff, by whom he had two children, one of whom is yet living. They (the children of the first and second marriages, and Hufschmidt and wife) all continued to live at the homestead till September, 1879, when Hufschmidt died, having shortly theretofore made his will, as follows: "(1) I give and bequeath to my beloved wife, Emilie L. Hufschmidt, the life insurance which I have in the orders of Odd Fellows and Freemasons in the state of Missouri. (2) I give and bequeath to my beloved wife, E. L. Hufschmidt, the use and income of my house and property on the corner of St. Louis street and Adelaide avenue, in the town of Pacific, county of Franklin, and state of Missouri, so long till the youngest of the children of my first wife, Amelia Hufschmidt, deceased, shall become of age, or when the said children of my first wife, deceased, can agree with my beloved wife, Emilie L., to sell the aforesaid property, including the house. (3) After such sale, the whole amount so realized shall be divided into eight equal shares or parts, so that each of the seven children left by my first wife, deceased, viz., Frank, Emma, Otto, Fritz, Augusta, George, and Alice, and Louisa, the only child with my present wife, shall receive one share or part. Should, however, any of these die before such division is made, without leaving any heir or heirs, then the amount shall be divided into so many shares or parts as are left. (4) For the use and income of the aforementioned property, house, and lot on St. Louis street and Adelaide avenue, Pacific, Missouri, my beloved wife shall pay the interest of my debts, and keep the premises in good order, and raise the minor children until they become of age; but for this she shall have also the use of all the furniture. (5) All of my other real estate, consisting of six lots and house in W. C. Ink's addition to Pacific, and a tract of land of 13.25 acres between the Missouri Pacific Railroad and Brush creek, in Keathy's addition to the town of Pacific, Missouri, my beloved wife shall sell to the best advantage, to settle and pay my contingent debts. (6) Emilie L. Hufschmidt appointed sole executrix. Dated July 29, 1879."

This will having been probated, Mrs. Hufschmidt, the executrix, declined in writing, in proper manner, to execute the will, whereupon William Meyersick was granted letters testamentary with the will annexed.

From the life insurance policies thus bequeathed her, and rents of the premises, Mrs. Hufschmidt received about $4,500 in cash, and some $385 worth of household goods and furniture, as well as enjoyed the house rent free till August 20, 1880; when, wearying of widow's weeds, she married her co-plaintiff, Phillip Kaes, and on the second day afterwards removed with her family of minor children and newly-wedded conjux to his house, in St. Louis county, where she continuously lived up to the time of the trial, having taken with her most of the beds and other furniture, selling a portion of it, and leaving the rest with an adult son of her husband by his first wife, who had occupied the house with her, and who afterwards sent to his stepmother a portion of the goods thus left in his care. The testimony of Mrs. Kaes as to her intention in removing is expressed in this language: "I did not leave any of the goods there for the purpose or with the intention of returning; had no special intention of returning when I left. I still live in St. Louis county with my husband; do not wish to occupy this property with my husband, and live in it. I can't say that I do intend to return to it, and don't say that I do not. Can't say that I would occupy the property, should Mr. Gross give me the privilege. I would have to see Mr. Kaes first. I don't want rent. I want Mr. Gross to pay me that what I claim as my homestead. I do not know how much it is. I have not made the calculation."

About $4,000, including the school-mortgage debt, was proved and allowed against the estate of Hufschmidt, after Meyersick took it in charge, and he, after selling some other lands, obtained a general order for the sale of the land in dispute, as well as two other lots, for the payment of debts; and at the first sale, in June, 1881, the property was struck off to Mrs. Kaes for $1,725, but, this sale being disapproved, the administrator sold the property mentioned for $3,800, in September, 1881, which sale was approved by the court, and a deed made to defendant Gross, March 10, 1882, who thereupon took possession of the property, and leased portions of the same to his co-defendants. Meyersick, the administrator, having paid off the unsecured debts with the money thus realized, satisfied the school mortgage aforesaid, and had it so entered on the record.

At the close of the evidence the court refused, on the request of plaintiffs, to give a declaration of law in these words: "If the court believes from the evidence that Gustavus Hufschmidt, in his life-time, was a housekeeper and head of a family, and that the plaintiff Emilie Kaes was his wife, and that, together with their children, they occupied and resided upon the premises described in the petition as being at the corner of St. Louis street and Adelaide avenue as their home, and that, while so occupying and residing upon said premises, instantly upon the death of said Hufschmidt, said premises vested in the plaintiff for life, and the court will so find, and the defendants have introduced no evidence in this case tending to defeat said claim." And gave, at the instance of defendants, the following declaration: "Although the court, sitting as a jury, may find from the evidence that Gustavus Hufschmidt was in his life-time a housekeeper and head of the family, and that the plaintiff ...