Lear v. Lear

• Decision Date: 16 May 1930
• Parties: Lear v. Lear.
• Court: United States State Supreme Court — District of Kentucky

234 Ky. 369

Lear v. Lear.

Court of Appeals of Kentucky.

Decided May 16, 1930.

1. Homestead. — During the lifetime of owner of homestead, owner's wife or husband has no estate or vested interest in homestead (Ky. Stats., secs. 1707, 1708, 2127; Civil Code of Practice, sec. 490).

Ky. Stats., secs. 1707, 1708, insure a surviving spouse a right of occupancy in the homestead, and section 2127 stipulates

that marriage shall not give to the husband any estate or interest in the wife's property during her life.

2. Homestead. — Homestead exemption runs to owner, right of other spouse being merely derivative, not direct (Ky. Stats., secs. 1707, 1708, 2127; Civil Code of Practice, sec. 490).

3. Homestead. — Homestead interest is not estate, but merely exemption from sale for debts (Ky. Stats., secs. 1707, 1708, 2127; Civil Code of Practice, sec. 490).

4. Homestead. — Homestead interest after owner's death is right of occupancy in surviving spouse and infant children (Ky. Stats., secs. 1707, 1708).

5. Partition. — During wife's lifetime, husband had no such interest in homestead jointly owned as would prevent wife from forcing sale and division of proceeds under statute (Ky. Stats., secs. 1707, 1708, 2127; Civil Code of Practice, sec. 490).

The present action was instituted by the wife, who had separated from her husband, under Civil Code of Practice, sec. 490, for a sale of a jointly owned house and lot worth less than $1,000. The husband contended that his right of homestead attached to the entire property when the wife abandoned the home.

Appeal from Scott Circuit Court.

JAMES BRADLEY for appellant.

FORD & FORD for appellee.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

Appellant and appellee are husband and wife, but separated shortly before this action was instituted. They are joint owners of a house and lot admittedly worth less than $1,000. The wife brought this action under section 490 of the Civil Code of Practice for a sale of the jointly owned property. The husband filed an answer in which he alleged, in substance, that he and the plaintiff had used and occupied the property as a homestead until about the time plaintiff instituted this action, when she abandoned the home, and that his right of homestead attached to the plaintiff's interest in the property, the whole of which is worth less than $1,000. The lower court sustained a demurrer to the answer. The defendant declined to plead further, and a judgment was entered directing the sale of the property and a division of the proceeds equally between the husband and wife. From this judgment, the husband appeals.

It is appellant's contention that, where property is jointly owned by a husband and wife and occupied as a homestead by one of the parties and is worth less than $1,000, a sale under section 490 of the Civil Code of Practice cannot be had by the party that has abandoned it, and he relies upon Charboneau v. Hart, 211 Ky. 204, 277 S.W. 242, and Bishop v. Simpson, 224 Ky. 289, 6 S.W. (2d) 253.

In Charboneau v. Hart, the appellee and his first wife jointly owned a tract of land worth less than $1,000. After his wife's death he continued to occupy the tract as a homestead. He remarried and the children by his first wife sought to have the land sold under section 490 of the Civil Code of Practice, and it was held under section 1702 of the Statutes that Hart was entitled to the possession of the whole tract as a homestead. In Bishop v. Simpson an execution was levied on a homestead owned by the husband who failed to interpose a defense, and it was held that the wife might defend for him and assert the right of homestead which the husband had failed to do. Neither of these cases is controlling here. The wife or husband of the owner of the homestead has no estate or vested interest in the property during the owner's lifetime. The homestead exemption runs to the owner, and the right of a spouse is a derivative and not a direct one. Demarest v. Allen, 189 Ky. 32, 224 S.W. 458; Summers v. Sprigg, 35 S.W. 1033, 18 Ky. Law Rep. 206. The homestead interest is not an estate, but merely an exemption from sale for the payment of debts, and after the death of the owner is a right of occupancy in the surviving spouse and infant children. Demarest v. Allen, supra; Brandenburg v. Petroleum Exploration Co., 218 Ky. 557, 291 S.W. 757; Turner v. Browning, 128 Ky. 79, 107 S.W. 318, 32 Ky. Law Rep. 891; Little v. Woodward, 14 Bush, 585; Brame v. Craig, 12 Bush, 404.

Section 1707, Kentucky Statutes, provides that "the homestead shall be for the use of the widow so long as she occupies the same, and the unmarried...