Mills v. Mills

• Decision Date: 03 November 1897
• Citation: 42 S.W. 709,141 Mo. 195
• Parties: MILLS et al. v. MILLS et al.
• Court: Missouri Supreme Court

42 S.W. 709

141 Mo. 195

MILLS et al. v. MILLS et al.

Supreme Court of Missouri, Division No. 1.

November 3, 1897.

HOMESTEAD — ABANDONMENT — EVIDENCE — DECLARATIONS OF INTENT — APPEAL — OBJECTIONS NOT MADE BELOW.

1. A man owning a farm, upon which he had resided as his homestead, bought land in a town about four miles from the farm, upon which town land was a small building, in a portion of which he kept a store for three years before his death. The remaining portion was used as living rooms by those of his family who were there. Witnesses stated he spoke of the farm as his home. He got supplies from the farm, upon which a married son remained, managing it, with the help of a man hired by the father, whose wife often stayed at the farm, which he frequently visited. The greater part of the household furniture remained at the farm, and the farm implements were not removed. After his death his administrator sold the town property to pay his debts, and his widow lived on the farm. Held, that he had not abandoned his homestead on the farm.

2. Where a man moved to and fro between his farm, upon which he had resided, and his town store, in which he had living rooms, his declarations are admissible to show which place he intended to be his homestead.

3. Where plaintiffs sought partition as heirs of A., and the proofs showed they were heirs of B., whose estate was not administered, the fact that the court did not continue the case to await the settlement of B.'s estate cannot be assigned as error, where no request for such continuance was made.

Appeal from circuit court, Greene county; James T. Neville, Judge.

Action by Sarah L. Mills and others against Tine Mills and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

T. J. Murray and T. J. Gideon, for appellants.

BARCLAY, C. J.

This action is designed to effect a partition of the estates of the heirs at law of Mr. T. A. Mills, deceased, in certain real property in Greene county. It does not appear necessary to state the pleadings. The substance of the controversy can be outlined more shortly. The chief issue is whether or not the land was the homestead of Mr. Mills at the time of his death. Defendants contend that it was. Plaintiffs assert that the place had been abandoned by him as a homestead, in the manner described further on. Plaintiffs and defendants are heirs of Mr. and Mrs. Mills, but the plaintiffs' claim to partition is founded on their relationship to Mr. Mills, while defendants resist partition on the theory that this land, as a homestead, became the property of Mrs. Mills at the death of her husband, and is subject to a lease made by her, and also to the debts of her estate. The latter has not yet been fully administered. In 1874 Mr. Mills died, seised of the tract of land which has caused the dispute in this action. The tract consists of 140 acres in the country. It is worth not more than $8 an acre. Mr. Mills and his wife, Nancy, occupied it in his lifetime as a homestead for a number of years, beginning before the late War. There was a substantial dwelling house upon the land, and there were the usual improvements necessary to carry on a farm. Mr. Mills had several children who lived with the parents on the home place. Some of the children married and left home. Others remained. The old home was about four or five miles from Brookline, a town which was established when the railroad now operated by the St. Louis & San Francisco Railroad Company was built. In 1871 the father, Mr. Mills, bought a piece of land in Brookline, and opened a little store there. There is testimony tending to prove that he retained possession of the old farm, cultivated it, and kept some of his family there. He visited it frequently. It was further shown, in the same connection, that he spoke of "going home" when he went out to the farm, and that "he always spoke of the farm place as his home." He got supplies of produce from the farm. One of his sons, who was married, remained there with his wife, and managed the farming business, with the help of a hired man employed by Mr. Mills. Mrs. Mills joined her husband at Brookline a short time after he opened the store there, but she often came back to the farm, and would stay a while. Some of the household goods were taken to...