Rhorer v. Brockhage

• Decision Date: 13 March 1883
• Citation: 13 Mo.App. 397
• Parties: HENRY RHORER, Appellant, v. JOHN W. BROCKHAGE, Respondent.
• Court: Missouri Court of Appeals

13 Mo.App. 397

HENRY RHORER, Appellant,

v.JOHN W. BROCKHAGE, Respondent.

St. Louis Court of Appeals, Missouri.

Mar. 13, 1883.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

GEORGE M. FORSTER, for the appellant: Under the Missouri law, the homestead law is an exemption from attachment and execution when used as a home.--Rev. Stats. 451, sect. 2691. The homestead exemption is a right--an immunity from attachment and execution at the hands of creditors only--but is not an estate.-- Black v. Curran, 14 Wall. 463; Hewett v. Templeton, 43 Ill. 367; Turner v. Bennett, 70 Ill. 263; Robinson v. Baker, 11 N. W. Rep. 410. And this exemption from attachment and execution of the home, when used as such, passes to and vests in the widow and children at the death of the housekeeper, and continues for their benefit without being subject to the debts of the deceased, but his entire interest and estate, except this exemption from execution and attachment thus continued, is subject to the laws relating to devise, descent, dower, partition, and sale.--Rev. Stats. 451, sect. 2693; Poland v. Vesper, 67 Mo. 727. When the householder dies intestate, without debts and without alienation, his real estate is subject to descent, dower, partition, etc., between the widow and heirs, the same as if the homestead law had no existence upon the statute book.--Rev. Stats. 451, sect. 2691; Bennett v. Turner, 70 Ill. 263; Sontag v. Schmisseur, 76 Ill. 541; Fight v. Holt, 80 Ill. 84; Hagar v. Nixon, 69 N. C. 108; Robinson v. Baker, 11 N. W. Rep. 410. Use as a home is one of the statutory conditions of a homestead, therefore the right and exemption may be lost by abandonment-- and the mother or surviving father can, by abandoning the homestead, deprive the children of this right. After the death of the father, the mother becomes the protector of the children, and her domicile and home becomes theirs.-- Thomp. on Homestead, sects. 43, 102, 550; Hicks v. Pepper, 57 Tenn. 42; Buck v. Conlogue, 46 Ill. 391; Clubb v. Wise, 64 Ill. 157; Shepherd v. Brewer, 65 Ill. 383; Johnson v. Taylor, 43 Texas, 121; Tadlock v. Eccles, 20 Texas, 782; Dawson v. Holt, 44 Texas, 174; Hartman v. Thomas, 37 Texas, 90; Davis v. Andrew, 30 Vt. 678; Truessal v. Morrell, 28 Vt. 672; Nevins' Appeal, 47 Pa. St. 230. Where the homestead right exists, the property is subject to execution, and partition, and sale, subject to that right.--Rev. Stats., chap. 56, sects. 3341, 3342; Poland v. Vesper, 67 Mo. 727; LeBourgeoise v. McNamara, 10 Mo. App. 116; Lunsford v. Jarrett, 2 Lea, 579; Harvey v. Duncan (MS.), Tenn. 1876; Avans v. Everett, 3 Lea, 76; Crook v. Lunsford, 2 Lea, 237; Mash v. Russell, 1 Lea, 543; O'Gatton v. Tolley, 10 Cent. L. J. 57; Hillard v. Scoville, 48 Ill. 453; s. c. 52 Ill. 449; Cook v. Webb, 19 Minn. 170.

W. H. H. RUSSELL, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

On May 17, 1875, the father of defendant died intestate, leaving him surviving as his sole heir, his only child, the defendant, and his widow, Mildred.

At the time of his death, Brockhage, the father, owned in fee, and occupied as his homestead, a lot of fifty-five by one hundred and twenty feet, in St. Louis.

On January 31, 1876, the widow elected to be endowed absolutely of a child's share in the property above mentioned.

Afterwards, the widow intermarried with one Alvord, and, together with her husband, on August 26, 1878, she executed and delivered a deed of trust to secure certain promissory notes. This deed was foreclosed, and plaintiff is the purchaser at the sale under the deed of trust.

After the death of John Brockhage, her first husband, the widow and her son, the defendant, resided upon the premises in question, until November, 1879, when they moved to another house, which they have ever since occupied. The first homestead is rented out, the widow and her son, the defendant, receiving the rents.

On this state of facts, plaintiff, claiming that he owns one undivided half of the premises in question in fee, as having succeeded to all the rights of the widow, and that defendant owns the other undivided half in fee, seeks in this action a partition of the premises.

The cause was tried by the court without a jury. The court found that the real estate, dwelling, and appurtenances included more than eighteen square rods of ground, and do not exceed the value of $3,000; that the homestead has not been set out; that eighteen square rods including the house are not subject to partition, during the minority of defendant; and that defendant is entitled to have a homestead set out to him during his minority, leaving the excess only subject to partition in this action. The plaintiff by stipulation waived any right to present partition of the excess over eighteen square rods, whereupon plaintiff's bill was dismissed by the court.

The question presented for our determination is, whether the homestead right given by our statute to a minor child is subject to partition.

It was formerly provided by statute in Missouri (Wag. Stats. 98, sect. 5), that “if any housekeeper or head of a family shall die, leaving a widow, or any minor children, his homestead to the value aforesaid” ($3,000 in the present case) “shall pass to, and vest in, such widow or children, or, if there be both, to such widow and children, without being subject to the payment of the debts of the deceased, unless legally charged thereon in his lifetime; and such widow and children, respectively, shall take the same estate therein of which the deceased died seised; provided that such children shall, by force of this chapter, only have an interest in such homestead until they shall attain their majority; and the probate court having jurisdiction of the estate of such deceased housekeeper or head of a family, shall, when necessary, appoint commissioners to set out such homestead to the person or persons entitled thereto.”

The supreme court ( Skouten v. Wood, 57 Mo. 380), following the construction given to this statute at the time it was enacted in Missouri, in Vermont, from which state it was derived, held that the widow's title under this section was an absolute estate in fee, and that, so far as homesteads are concerned, it effected a repeal of the statute of descents and distributions.

In March, 1875, this section of the homestead act was changed. Laws of 1875, p. 60, sect. 1. The section as then amended, and as it now exists (Rev. Stats., sect. 2693), reads as follows:--

“If any such housekeeper or head 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; and such homestead shall, upon the death of such housekeeper or head of a family, be limited to such period. But all the right, title, and interest of the deceased housekeeper or head of a family in the premises, except the estate of the homestead thus continued, shall be subject to the laws relating to devise, descent, dower, partition, and sale for the payment of debts against the estate of the deceased; and the probate court,” etc., as in the old law.

The essential change made by this new legislation seems to be, that the widow has a life estate, instead of a fee, which she had before. An estate is carved out of the estate of the husband, for the use of his family, and it is a vested estate, which is not to cease to exist until the family cease to exist by the coming of age of the youngest child and the death of the widow, upon the happening of which events the purpose for which the general estate was taken out of the fee having failed, the fee receives back the particular estate.

If either of the parties could lessen or impair the rights of the others, the object of the statute would be defeated. We have no doubt that the rights of the children are not impaired by the abandonment of the homestead by the mother. Heard v. Downer, 47 Ga. 629; Johnston v. Turner, 29 Ark. 280; Nicholas v. Purczell, 21 Iowa, 265.

Our statute says nothing about the occupancy of the homestead by the widow or children. In Illinois, under a statute which provides that “the exemption shall continue after the death of the householder for the benefit of the widow and family, some or one of them continuing to occupy such homestead until the youngest shall become twenty-one years of age, and until the death of such widow,” it is held ( Walters v. The People, 21 Ill. 178), that occupancy of the homestead may be by means of a tenant, and that actual residence by the widow or child is not required, and that abandonment of the homestead by the widowed mother would not prejudice the rights of the children. “It is evidently the intention of the act,” says Judge Breese, in language which is partly applicable to our own statute, “to give the widow and family a home, which shall be not only her refuge in her affliction, but afford her means for support for herself and her children. Besides, great care is expressed for the children by the provision that the exemption shall exist until the youngest shall become twenty-one years of age, making no distinction between males and females, to the latter of whom the exemption is extended three years beyond their majority. Now, by what process can this youngest child be deprived of the right secured to it by this act? Suppose it was a child at the breast and an orphan, the mother having died also, would it be contended that the little infant must actually reside on the lot? Would not the occupancy of the premises by a tenant fulfil the requirements of the statute? How else could the infant enjoy the benefit...