Regan v. Ensley

Decision Date04 June 1920
Docket NumberNo. 20821.,20821.
Citation283 Mo. 297,222 S.W. 773
PartiesREGAN et al. v. ENSLEY.
CourtMissouri Supreme Court

Appeal from Circuit Court, Montgomery County; E. S. Gantt, Judge.

Suit for partition by Mary Alice Regan and another against William Ensley. From a judgment for defendant, plaintiffs appeal. Affirmed.

Claude R. Ball, of Montgomery City, for appellants.

W. C. Hughes, of Montgomery City, for respondent.


This is a suit to partition certain town lots in New Florence, Montgomery county. Mary Alice Regan and Sarah Anderson, appellants, and William Ensley, respondent, are the children of Solomon and Rebecca Ensley, through whom appellants claim title by descent as tenants in common to the lots in question. A trial in the circuit court resulted in a finding that appellants had no title to the property and, that the fee in same was in the respondent. From the judgment rendered thereon, appellants have prosecuted this appeal.

Solomon Ensley died testate in April, 1896, seized in fee of the lots, which at the time he occupied with his wife as a homestead. The pertinent portions of his will are as follows:

"1st. I give and bequeath to my beloved wife, Rebecca Ensley, all the real estate and personal property I may have or own at the time of my death to have and to hold and use during her lifetime and at her death all of such real estate to descend to my son, William Ensley, to have and to be held and owned by him in fee simple to use and dispose of as he may see proper.

"2d. I give and bequeath to my two daughters, Sarah Anderson, the wife of Thomas Anderson, and Alice Regan, the wife of Jeff Regan, each the sum of ten dollars to be paid to them out of my personal estate or by my son, William Ensley, and in the event my son, William Ensley, pays to my two said daughters the said sums of ten dollars then and in that event it is my will and desire that my son, William Ensley, shall fall heir to any and own all of my personal estate which may remain in existence at the time of the death of my said beloved wife which has not been disposed of by her for use and support."

Rebecca, relict of Solomon, continued after his death to occupy the premises, not only during her widowhood, but after her marriage to one Austin, and until her death in March, 1917. The authority of the testator to devise the lots which constituted his homestead is the matter at issue. The applicable statute is the amendatory act of the homestead laws (Laws 1895, p. 185) in force at the time of the testator's death (Balance v. Gordon, 247 Mo. loc. cit. 131, 152 S. W. 358). Sections 6704 and 6708, R. S. 1909, are in no material features different from the relevant portions of the act of 1895, which in the first section prescribes the limitations upon the right of the disposal of a homestead as follows: "

"Sec. 5435. The homestead of every housekeeper or head of a family, consisting of a dwelling house and appurtenances, and the land used in connection therewith, not exceeding the amount and value herein limited, which is or shall be used by such housekeeper or head of a family as such homestead, shall, together with the rents, issues and products thereof, be exempt from attachment and execution, except as herein provided; such homestead in the country shall not include more than one hundred and sixty acres of land, or exceed the total value of fifteen hundred dollars; and in cities having a population of forty thousand or more, such homestead shall not include more than eighteen square rods of ground, or exceed the total value of three thousand dollars; and in cities baying a population of ten thousand and less than forty thousand, such homestead shall not include more than thirty square rods of ground, or exceed the total value of fifteen hundred dollars; and in cities and incorporated towns and villages having a population less than ten thousand, such homestead shall not include more than five acres of ground, or exceed the total value of fifteen hundred dollars. The husband shall be debarred from and incapable of selling, mortgaging, or alienating the homestead in any manner whatever, and every such sale, mortgage or alienation is hereby declared null and void: Provided, however, that nothing herein contained shall be so construed as to prevent the husband and wife from jointly conveying, mortgaging, alienating or in any other manner disposing of such homestead, or any part thereof."

And in the second section defines the manner in which such homestead shall pass and vest, as follows:

"Sec. 5439. If any such housekeeper or bead of a family shall die, leaving a widow or any minor children, his homestead to the value aforesaid shall pass to and vest in such widow or children, or if there be both, to such widow and children, and shall continue for their benefit without being subject to the payment of the debts of the deceased, unless legally charged thereon in his lifetime, until the youngest child shall attain its legal majority, and until the death of such widow: that is to say, the children shall have the joint right of occupation with the widow until they shall arrive respectively at their majority, and the widow shall have the right to occupy such homestead during her life or widowhood, and upon her death or remarriage it shall pass to the heirs of the husband; and the probate court having jurisdiction of the estate of the deceased housekeeper, or head of a family, shall, when necessary, appoint three commissioners to set out such homestead to the person or persons entitled thereto."

[1] Under these statutes appellants contend that the inhibition therein upon the alienation of a homestead, whether by devise or otherwise, is absolute; and upon the death of the testator a life estate in the property vested in his widow with a vested remainder in the parties hereto, appellants and respondent, which ripened into a fee upon the death of the widow. While homestead laws are purely statutory in their origin, their salutary intent is such as to incline the courts to uniformly construe them with great liberality. Such construction, however, should not extend beyond the plain purpose of their enactment as evidenced by the usual and obvious meaning of the words employed, or dispense with the necessity of parties bringing themselves within the spirit and purpose of the laws unaided by judicial construction. Dalton v. Simpson, 270 Mo. loc. cit. 300, 193 S. W. 546; Keeline v. Sealy, 257 Mo. 498, 165 S. W. 1088; Sperry v. Cook, 247 Mo. 132, 152 S. W. 318; Hines v. Duncan, 79 Ala. 112, 58 Am. Rep. 580; Fred v. Bramen, 97 Minn. 484, 107 N. W. 159, 114 Am. St. Rep. 740; Charless v. Lamberson, 1 Iowa, 435, 63 Am. Dec. 457.

[2, 3] Mindful of these rules, the meaning of the statute as applied to the facts at bar should not be difficult of determination. That the homestead interest upon the death of the husband vests as a conditional life estate in the widow we have repeatedly held. Bushnell v. Loomis, 234 Mo. 371, 137 S. W. 257, 36 L. R. A. (N. S.) 1029; Snodgrass v. Copple, 203 Mo. 480, 101 S. W. 1090; Hufschmidt v. Gross, 112 Mo. 649, 20 S. W. 679; West v. McMullen, 112 Mo. 405, 20 S. W. 628; Rhorer v. Brockhage, 86 Mo. 544. In this far, therefore, no question can arise as to the correctness of appellants' contention. That one of the conditions under the statute on which the widow's estate was terminable, viz. her marriage, need not concern us, as it did not the parties hereto. She continued in the possession and occupancy of the premises thereafter until her death, and if any conclusion is to be drawn as to the character of her tenure after her marriage it is that thenceforth she was holding under the will and not under the statute. In any view of this phase of the facts it cannot affect appellants' title.

A further provision of the statute is that the children of a householder or head of a family shall upon his death use and occupy the homestead jointly with his widow during her tenure and thereafter until each of such children reaches its legal majority. The effect of this statute is to create in said children...

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