Powell v. Powell
| Decision Date | 21 December 1910 |
| Citation | 247 Ill. 432,93 N.E. 432 |
| Parties | POWELL v. POWELL et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Peoria County; N. E. Worthington, Judge.
Bill by Patrick Powell against James D. Powell and others. From a decree of the circuit court, defendants appeal. Affirmed.
Cameron & Cameron, for appellants.
Stevens, Miller & Elliott, for appellee.
Ann Powell, wife of appellee, Patrick Powell, died intestate February 22, 1907, leaving her husband, and Elizabeth Kaiser, Mamie Fitzpatrick, and Margaret Powell, her daughters, and James, Frank, and William Powell, her sons, and Needa Powell, a granddaughter of her deceased son, Cornelius Powell, surviving her as her only heirs at law. At the time of her death she was the owner of a house and lot in the city of Peoria, which was occupied by her and her husband as a homestead. Some years before her death the title to this property was in her husband, and he and his wife joined in a deed conveying these premises to their son Daniel J. J. Powell, commonly known as James Powell. Afterwards, some three years before her death, the latter conveyed the premises to Ann Powell, his mother. After the death of Ann Powell, Patrick Powell, her surviving husband, filed a bill in equity to set aside the deed to the son and the one from the son to his mother, on the ground that Patrick Powell was not mentally competent to make a deed at the time he conveyed the premises to his son. In his bill Patrick Powell prayed, in the alternative, for the assignment of his homestead in the premises in case it was found that Ann Powell was the owner of the fee at the time of her death. The circuit court of Peoria county entered a decree dismissing the bill upon the ground that the evidence showed that he was competent to make a deed at the time he conveyed the premises to his son. From that decree Patrick Powell prosecuted an appeal to this court, which was disposed of by an opinion filed at the June term, 1909, and is reported as Powell v. Powell, 240 Ill. 442, 88 N. E. 993. The decree of the circuit court established the title of Ann Powell at the time of her death, but failed to dispose of the homestead rights of Patrick Powell under the prayer of his bill for that purpose. This court approved of the finding of the circuit court in so far as it found that Patrick Powell was competent to make a deed at the time he conveyed the premises to his son James, but reversed and remanded the case for the purpose of disposing of the homestead question which was involved. After the cause was remanded to the circuit court, it was referred to a master to take evidence upon the charge contained in the bill that Patrick Powell had been deprived of the use of his homestead by the wrongful conduct of some of his children, and to make a finding as to the amount of rent that should be paid him for the premises during the time that they were occupied adversely to him after his wife died. The master found that Patrick Powell had been almost wholly deprived of the use and enjoyment of his home and homestead, and that the value of that portion of it occupied without his consent was $12 per month, and, in a supplemental report, found that it would be equitable, under the circumstances, to require appellants to pay Patrick Powell one-half of the rental value of the premises so occupied-or $6 per month. Objections and exceptions to the report of the master were filed on behalf of both parties, but they were all overruled, and a decree entered approving the findings of the master and appointing commissioners to set off a homestead to Patrick Powell and his dower in the premises. The commissioners appointed by the court reported that the premises were so situated that homestead and dower could not be assigned, and valued the house and lot at $2,400. Upon the coming in of this report the court made a further decree approving the commissioners' report and finding that none of the heirs of Ann Powell had taken any steps to have a homestead and dower of Patrick Powell assigned in the premises, and entered a decree confirming the right of Patrick powell to occupy the homestead free from any interference of the heirs. The present appeal is by the heirs of Ann Powell for the purpose of obtaining a review of the decree below adjudging Patrick Powell to be entitled to the exclusive possession of the homestead. Cross-errors have been assigned by Patrick Powell on the refusal of the court to allow damages, in addition to the rent, because of the failure of the heirs to assign his homestead and dower.
Appellants make two principal contentions: (1) That appellee is not entitled to occupy the premises in question as a homestead to the exclusion of appellants, who are the heirs of the deceased owner; (2) that the evidence did not establish the charge in the bill that the appellants had forcibly and wrongfully deprived appellee of the possession and enjoyment of his homestead, and that therefore the decree of the court requiring them to pay him rent is erroneous.
Appellants' first contention presents the legal question whether a surviving husband or wife, under the homestead law, has the right, as against adult heirs, to the exclusive occupancy of the homestead where it is not susceptible of division and is worth more than $1,000. The first homestead law passed in this state provided that the ‘lot of ground and the buildings thereon occupied as a residence,’ etc., should be exempt from ‘levy and forced sale under any process or order from any court of law or equity in this state.’ The extent in value of the homestead under this law was $1,000, and the exemption was continued after the death of the householder for the benefit of the widow and family until the youngest child became 21 years of age and until the death of the widow. Laws of 1851, p. 25. This statute continued without any substantial change until the act of 1872 was passed. Under the first homestead law no exemption was continued in favor of the surviving husband, and the homestead, in whomsoever vested, was only exempt from ‘levy and forced sale under process of court.’ The homestead law of 1872 (Laws 1871-72, p. 478) changed a mere exemption under the former statute to an estate, and provided that such ‘homestead and all right and title therein shall be exempt from attachment, judgment, levy on execution, sale for the payment of his debts or other purposes, and from the laws of conveyance, descent and devise, except,’ etc. The statute of 1872 exempted a homestead to the extent and value of $1,500, which was, however, reduced by an amendatory act in 1873 (Laws 1873, p. 99) to $1,000 in value. Kales on Homestead Exemption Laws, § 125 et seq.
The omission in the law of 1851 to exclude the homestead from the laws of descent and devise virtually placed it within the power of the heirs, by partition, to destroy the homestead estate of the surviving spouse. It would seem, necessarily, to follow that property subject to a homestead would pass to the heirs or devisees free from the homestead of the widow, and such was the construction placed upon said act by this court. Turner v. Bennett, 70 Ill. 263. The act of 1872 made three important changes in the homestead law: (1) It changed a mere exemption into an estate; (2) it made the estate exempt from the laws of descent and devise; (3) it continued the exemption for the benefit of the surviving husband as well as the wife. After the passage of the law of 1872 this court gave effect to the provision in that law exempting the homestead from the effect of the laws of descent and devise, by holding that after the death of the householder the widow was entitled to a homestead against the claims of the heirs. Merritt v. Merritt, 97 Ill. 243;Stunz v. Stunz, 131 Ill. 210, 23 N. E. 407;Best v. Jenks, 123 Ill. 447, 15 N. E. 173;Loveless v. Thomas, 152 Ill. 479, 38 N. E. 907.
The case of White v. Plummer, 96 Ill. 394, which was decided under the law of 1872, illustrates the construction that this court many years ago placed on the statute exempting the homestead from the laws of devise. That was an action of ejectment by the heirs against the widow to recover the homestead. The will devised the homestead to the widow during her natural life. She renounced her rights under the will and elected to take under the statute. Afterwards her homestead was assigned or allotted to her by an order of court. The widow then conveyed the homestead to a third party, and the heirs, who were stepchildren of the widow, brought ejectment against her grantee. This court reversed the judgment in favor of the heirs.
Under the present homestead law, as the same has been construed by this court and as it is generally understood by the profession, no one would seriously claim that the adult heirs or devisees could by any means known to the law interfere with the exclusive enjoyment of the homestead by the surviving husband or wife where it has been assigned or where it was admittedly worth less than $1,000. The language of the statute exempting the homestead from the laws of descent and devise means, in such case, that all right of the heirs or devisees, as such, to interfere with the homestead must be postponed until that estate is extinguished by the death of the life tenant or in some of the ways provided by law. But the situation presented by the case at bar is different. Here the residence and lot upon which it stands are worth $2,400 and the property is so situated that it cannot be divided, and the surviving husband refuses to assent to its sale and insists on the right to occupy it to the exclusion of the heirs.
Section 8 of the exemption law (Hurd's Rev. St. 1909, c. 52) provides that in the enforcement of a lien in a court of equity upon premises including a homestead, if such right is not waived or released, the court may cause the homestead to be assigned and set off and decree the sale of the balance, or if...
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