Rockhey v. Rockhey

• Decision Date: 04 March 1889
• Citation: 11 S.W. 225,97 Mo. 76
• Parties: ROCKHEY v. ROCKHEY et al.
• Court: Missouri Supreme Court

11 S.W. 225

97 Mo. 76

ROCKHEY v. ROCKHEY et al.

Supreme Court of Missouri.

March 4, 1889.

HOMESTEAD — DESCENT AND DISTRIBUTION.

Under Rev. St. Mo. § 2693, providing that upon the death of the head of a family, leaving a widow or minor children, the homestead shall pass and vest in them until the death of the widow and the majority of the youngest child, but that all the interest of the decedent in the premises, except the estate of homestead thus continued, shall be subject to the law of devise, descent, etc., a husband cannot devise his homestead so as to prevent its passing by operation of law to his widow and minor children.

Appeal from circuit court, Grundy county; G. D. BURGESS, Judge.

Petition by Prudence Rockhey, widow of Thomas Rockhey, deceased, against the heirs and devisees of her late husband, for an assignment of homestead in the lands of said decedent, and for other relief. Judgment for defendants, and plaintiff appeals.

Geo. Hall, for appellant. P. C. Stepp and J. H. Shanklin, for respondents.

BLACK, J.

The plaintiff is the widow of Thomas Rockhey, who died testate in 1882, seised of 200 acres of land in Grundy county, and 70 or 80 acres in Livingston county, and upon which he, his wife and children, resided at the time of his death. The plaintiff by this suit asks for partition of the land and the assignment of the homestead to her. The question is whether she is entitled to a homestead. The testator devised 20 acres of land to one son, made certain bequests to other of the children, and then devised all of the rest of his real and personal estate to the defendant Charles Rockhey, and appointed him executor. The third clause of the will is in these words: "I also direct my executor to pay my beloved wife, Prudence, one hundred dollars at my death, and also the sum of one hundred dollars to be paid her annually during her natural life, and also the privilege of residing on my homestead; the same to be taken and accepted by her in lieu of dower and any distributive share in my personal estate." The plaintiff did not renounce the will, and, in view of this fact, the circuit court held that these provisions made for the widow were in lieu of both dower and homestead, and that, therefore, she was not entitled to homestead.

Section 2693, Rev. St., provides that if the housekeeper or head of a family shall die, leaving a widow or minor children, his homestead, to the designated value and amount, shall pass to and vest in such widow...