Roberts v. Ware

• Citation: 80 Mo. 363
• Parties: ROBERTS et al., by Guardian, v. WARE, Appellant.
• Decision Date: 31 October 1883
• Court: Missouri Supreme Court

80 Mo. 363

ROBERTS et al., by Guardian,

v.WARE, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Nodaway Circuit Court.--HON. H. S. KELLEY, Judge.

AFFIRMED.

Edwards & Ramsay for appellant.

The widow being the head of the family, the domicile of the minor children must follow hers, and if she sell and convey the homestead and abandon it, the children are bound. Howe v. Adams, 28 Vt. 545; Wright v. Dunning, 46 Ill. 271; Danton v. Woodbury, 24 Iowa 74; Orman v. Orman, 26 Iowa 361; Tadlock v. Eccles, 20 Tex. 792; Brewer v. Wall, 23 Tex. 589; Thompson on Home., § 570.

White & Alderman for respondents.

Plaintiffs are entitled to the possession of the premises as the minor children of their deceased father. Wag. Stat., p. 698, § 5; Skouten v. Wood, 57 Mo. 380. Minor children are incapable either by act or declaration of abandoning their homestead right. Thompson on Home., § 243; Booth v. Goodwin, 29 Ark. 633. The acts of the widow did not affect their rights. Johnson v. Turner, 29 Ark. 280; Phipps v. Acton, 12 Bush (Ky.) 375.

EWING, C.

This is a suit in ejectment, by plaintiffs against the defendant, to recover possession of the south half of the southwest quarter section 14, township 65, range 37, containing eighty acres; and also a certain part of lot 4 of the northwest fractional quarter of section 20, township 65, range 37. The defendant, after denying specifically the allegations in the petition, says:

Defendant, for further answer and defense, states that on or about the _____ day of January, 1874, David Roberts died intestate; that prior to and at the time of his death, he was the husband of one Elizabeth Roberts, and was a housekeeper and the head of a family, and seized in fee simple of and occupied the lands described in said petition, as and for his homestead; that said lands did not exceed ninety acres in all, and were of less value than $1,500; that immediately on the death of said David Roberts, said lands and homestead passed to and vested in fee simple in said Elizabeth Roberts, her heirs and assigns forever; that by the death of said David Roberts, as aforesaid, the plaintiffs, David Roberts and Mary F. Roberts, as her minor children, obtained a right to remain upon said homestead jointly with said Elizabeth Roberts, who is their mother, until they should attain their majority, unless they should sooner lose the same by abandonment; that after the death of said David Roberts, his said widow, Elizabeth, married one Lemuel Shirley, and afterward, to-wit, on the 15th day of August, 1877, said Elizabeth Roberts, then Shirley, sold the land described in said petition, being her homestead, as aforesaid, to the defendant, for the consideration of $200, to be paid by defendant; and at the date last aforesaid she, with her said husband, Lemuel Shirley, executed and delivered to defendant their joint deed of that date, signed, sealed and acknowledged by them, and that the said Elizabeth Shirley, at the date of the execution of said deed, and in pursuance of said purchase, wholly and forever abandoned said premises, together with her minor children, plaintiffs herein, to defendant, and delivered to him the possession thereof, which he still holds under said purchase and deed, claiming title to said premises thereunder, in fee simple; that said minor children by the said sale and abandonment of said homestead by their mother, have surrendered and lost their right of possession thereto.

The plaintiffs' reply denied that the land descended to and vested in Elizabeth Roberts and her heirs in fee simple; denied that she sold or intended to sell to defendant, anything more than her dower right; that Ware intending to cheat and defraud her, made false representations to induce her to sell and give possession of the premises, and denied an abandonment by the plaintiffs, but that they are minors living with their mother and went with her.

The following admissions were made on the trial: “That David Roberts died, seized in fee simple of the south half of the southwest quarter of section 14, also ten acres being part of lot 4, of the southwest fractional quarter of section 20, all in township 65, range 37, in Nodaway county, Missouri; that at the time of his...