Koster v. Gellen

• Decision Date: 15 May 1900
• Court: Michigan Supreme Court
• Parties: KOSTER v. GELLEN.

82 N.W. 823

124 Mich. 149

KOSTER v. GELLEN.

Supreme Court of Michigan

May 15, 1900

Case-made from circuit court, Kent county; Allen C. Adsit, Judge.

Ejectment by Anna Koster against Catherine Gellen. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Smedley & Corwin, for appellant.

Stuart & Barker, for appellee.

LONG J.

This is an action of ejectment. The premises in controversy belonged to John Gellen in his lifetime, and were occupied as a homestead by him and his wife, the defendant. He died in October, 1895, leaving a last will and testament, which was duly probated. By the will Peter Braun was appointed executor of the estate. The will directed tat the executor should sell and dispose of all the real estate of the deceased, and that the executor should pay out of the estate all the debts of the deceased, and should also pay the widow of the deceased such sum or amount as might be agreed upon between the executor and the widow in lieu of her dower interest 'and, in case of disagreement, such sum or amount as the court may direct.' It appears that the executor and the widow could not agree upon the amount the widow should receive in lieu of her dower interest, and thereupon the executor filed a petition in the probate court asking the court to fix the amount he should pay said widow in lieu of her dower right, according to the terms of said will. At the same time the widow petitioned the probate court for the same purpose. The prayer of her petition reads as follows: 'Your petitioner therefore asks the court to proceed under the provisions of the will above cited, and allow your petitioner a reasonable sum out of said estate instead of her dower interest, but to be in lieu thereof.' The probate court heard both petitions as one, and made a decree which provides that 'said Catherine Gellen be allowed the sum of one hundred and ninety-six and forty-three hundredths dollars in lieu of her dower interest in the real estate of said deceased, and that the executor pay the same to her accordingly.' The executor tendered her the amount fixed by the decree, which she refused to to accept, claiming that it was not enough for her dower interest. No appeal, however, was taken from this decree. The executor, after advertising according to law, sold the premises in controversy here at public sale by virtue of the power given him by the will, and the plaintiff became the purchaser thereof, and received the executor's deed therefor. Written demand was served by the plaintiff upon defendant for possession of the premises before suit was commenced. The defendant has occupied the premises ever since the death of her husband as her homestead, and still occupies and claims them as such, and avers that she has no other homestead. December 14, 1896, plaintiff commenced proceedings against defendant before a circuit court commissioner, under section 8295, How. Ann. St., for the purpose of obtaining possession of these premises and other lands. The defendant, in her plea before the commissioner, claimed the premises as her homestead. The commissioner decided that the plaintiff was entitled to that part of the premises not occupied by defendant as a homestead, but was not entitled to a judgment for that part which was occupied by defendant as her homestead. No appeal was taken by either party from this judgment. The widow took no proceeding for the assignment or recovery of her dower, as provided by How. Ann. St., supra, and Comp. Laws 1897, �� 8935, 8936. On these facts the court below found as a conclusion of law that the defendant was entitled to the premises as and for a homestead so long as she remained the widow of John Gellen. Plaintiff brings error.

It is now contended by counsel for plaintiff:

1. That the defendant, by failing to commence proceedings for the assignment or recovery of her dower within one year after the death of her husband, as provided by statute, and by petitioning the probate court to proceed under the provisions of the will, and allow her a reasonable sum out of the estate, instead of her dower interest, in lieu thereof, has waived her right to dower under the statute, and has elected to take under the will. In this, we think, counsel for plaintiff is correct. In re Smith, 60 Mich. 142, 27 N.W. 80; In re Bloss' Estate, 114 Mich. 204, 72 N.W. 148. The statute provides: 'If any lands be devised to a woman, or other provision be made for her in the will of her husband, she shall make her election whether she will take the lands so devised, or the provision so made, or whether she will be endowed of the lands of her husband; but she shall not be entitled to both unless it plainly appears by the will to have been so intended by the testator.' Comp. Laws 1897, � 8935. 'When a widow shall be entitled to an election under either of the two last preceding sections, she shall be deemed to have elected to take such jointure, devise or other provision unless within one year after the death of her husband she shall commence proceedings for the assignment or recovery of her dower.' Id. � 8936.

2. It is contended that, the estate being solvent, no homestead right attached in favor of the widow in this piece of land. The argument of counsel is that the widow has elected to take under the will, and the will provides for a sale of the premises, and a payment to her in cash in lieu of her dower; that the executor has proceeded under the power of sale contained in the will, and sold the premises, and the purchaser is seeking to obtain possession of the property in an action of ejectment under the executor's deed; that the estate was solvent, and all the debts paid before the executor sold the land; that the executor did not sell the land in order to pay debts, but sold it in pursuance of the provisions of the will, which directed him to sell and dispose of all the real estate of said deceased; that defendant now seeks to hold possession of the house and lot in question as a homestead. It is the contention that, under such circumstances, no homestead right attaches in favor of the widow in the piece of land. Counsel cite in support of this contention: Zoellner v. Zoellner, 53 Mich. 624, 19 N.W. 556; Patterson v. Patterson, 49 Mich. 176, 13 N.W. 504; Robinson v. Baker, 47 Mich. 619, 11 N.W. 410. The constitutional provisions relative to homestead rights are as follows:

...