Kellar v. Kellar

• Decision Date: 18 May 1920
• Citation: 221 S.W. 189
• Parties: KELLAR et al. v. KELLAR.
• Court: Tennessee Supreme Court

221 S.W. 189

KELLAR et al. v. KELLAR.

Supreme Court of Tennessee.

May 18, 1920.

Appeal from Chancery Court, Hardeman County; J. W. Ross, Chancellor.

Suit by J. T. Kellar and others against Mrs. Ella Kellar. From an adverse decree, defendant appeals. Affirmed.

Chas. A. Miller, of Bolivar, for appellant.

H. E. Carter, of Bolivar, for appellees.

GREEN, J.

This bill was filed by the children of D. A. Kellar to recover from his widow, Mrs. Ella Kellar, a one-half interest in a tract of land conveyed to D. A. Kellar, and his wife, Ella Kellar, July 8, 1915.

This deed was made while chapter 26 of the Acts of 1913 was in force. Under such a deed Kellar and wife took as tenants in common; tenancy by the entirety having been abolished by said statute as held in Gill v. McKinney, 140 Tenn. 549, 205 S. W. 416.

Mrs. Kellar was decreed by the chancellor to be entitled to dower in the one-half interest sought to be recovered herein, but he held that she was not entitled to homestead in such interest, and from this decree she has appealed.

We are asked in the first place to reconsider our holding in Gill v. McKinney, supra, to the effect that chapter 26 of the Acts of 1913 abolished tenancy by the entirety. This we must decline to do. Gill v. McKinney, supra, was fully considered, and the opinion was well reasoned, and we are satisfied that no other effect could be given to the aforesaid statute.

The case is then reduced to a single question. Can a homestead exist in land held as tenants in common by husband and wife?

We think this question under our authorities must be answered in the negative. A tenancy in common between husband and wife under chapter 26 of the Acts of 1913 is in no way different from such a tenancy between strangers, in so far as the homestead right is concerned.

Married women having been fully emancipated by the statute as pointed our in Gill v. McKinney, supra, they hold property free from any disability or any incapacity by reason of their marriage. Under such statute neither a married woman nor her husband owns anything in severalty in land conveyed to them as tenants in common, any more than do other such tenants. Neither of them owns a specific portion of land capable of being set apart by metes and bounds prior to partition.

These things being true, the rule announced in our former cases that the interest of a tenant in common in lands is free from homestead must be here applied, even though the tenants in common happen to be...