Kerlee v. Smith
| Decision Date | 22 June 1912 |
| Parties | KERLEE et al. v. SMITH. |
| Court | Montana Supreme Court |
Appeal from District Court, Ravalli County; R. Lee McCulloch, Judge.
Action by Myra Kerlee and another against James F. Smith. From a judgment for defendant, plaintiffs appeal. Affirmed.
J. E Shoudy, of Hamilton, for appellants.
Baker & Kurtz, of Hamilton, for respondent.
Action in ejectment. On February 7, 1898, Albert Freeman died intestate in Ravalli county. Among the assets of his estate were lots 8 and 9 in block 16 in the town of Hamilton, with a building thereon known as the "Cottage Hotel." He left surviving him, as his only heirs at law, Martha A Freeman, his widow, Egbert Freeman, a son by a prior marriage, and the plaintiffs, Myra Kerlee, née Myra Sherrill and George F. Sherrill, children of a daughter by the prior marriage. At the time of Freeman's death the plaintiffs were minors. They are now sui juris. Pending the administration, Egbert Freeman died intestate leaving no direct heirs. Subsequently, on May 24, 1899, the court upon application of the widow set apart to her as a homestead the lots and building referred to. Upon final distribution of the estate it was decreed that the widow was entitled, as heir, to an undivided one-third interest in the premises, and the plaintiffs to an undivided two-thirds, subject to the homestead right of the widow. The widow occupied the premises until October 4, 1910. On that date she conveyed to the defendant, by warranty deed, her undivided one-third interest, together with her homestead right, under the designation of her "life estate *** in the whole of said premises," together with the appurtenances, rents, issues, and profits thereof. The defendant entered immediately into possession and has ever since enjoyed the use and occupation of the whole property, to the exclusion of plaintiffs. The purpose of this action is to obtain a judgment awarding to them the possession of their undivided two-thirds interest, and for damages for the alleged wrongful withholding thereof by the defendant since entering into possession. The court sustained a general demurrer to the complaint and awarded defendant judgment for costs. The plaintiffs have appealed. Their contention is that by her conveyance the widow abandoned her homestead right, and that the plaintiffs immediately became entitled to enter with the defendant, as his cotenants.
The order of the court setting aside the homestead was authorized by section 2581 of the Code of 1895 (Rev. Codes, § 7509), and the character of the right acquired by the widow depended upon the provisions of section 2584 (Rev. Codes, § 7512). The latter section declares:
Prior to the enactment of the Codes of 1895, the fee of the homestead set apart by the probate court, if there were no children, vested in the surviving widow or husband. If the deceased left a minor child or children, it vested in the surviving widow or husband and the minor child or children in equal moleties. Otherwise it vested in the child, or, if there were more than one child, in them all as tenants in common in equal shares. Compiled Stats. 1887, div. 2, § 137; Bullerdick v. Hermsmeyer, 32 Mont. 541, 81 P. 334. This was the result whether the property belonged to the separate estate of the decedent or not, because the statute so provided. Under the section quoted supra, when the property set apart is selected from the separate estate of the decedent, it can be set apart for a limited period only to be designated in the order, "which shall be a life estate to the husband or wife"; the title vesting in the heirs of the deceased, subject to the order. It will be observed that the purpose of the Legislature in enacting the later statute was to preserve to the heirs of the decedent the fee of the real property belonging to his separate estate, but subject to a life estate carved out of it in favor of the surviving husband or wife. Thus the latter is vested with a life estate in the whole property,...
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