Schneider v. Hoffmann

• Decision Date: 22 June 1880
• Citation: 9 Mo.App. 280
• Parties: BARBARA SCHNEIDER ET AL., Appellants, v. JOHN C. HOFFMANN ET AL., Respondents.
• Court: Missouri Court of Appeals

9 Mo.App. 280

BARBARA SCHNEIDER ET AL., Appellants,

v.JOHN C. HOFFMANN ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jun. 22, 1880.

Under the statute of 1865 the husband could not dispose of his homestead by will, and where there were no children the widow took an absolute title, which would go to her heirs.

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

Affirmed.

FRED. WISLIZENUS, for the appellants, cited: Thomp. on Home. and Ex., sects. 453-455; Vogeler v. Montgomery, 54 Mo. 584; Casebolt v. Donaldson, 67 Mo. 311.

RUDOLPH SCHULENBURG, for the respondents, cited: Skouten v. Wood, 57 Mo. 383; Gragg v. Gragg, 65 Mo. 343; Plate v. Koehler, 8 Mo. App. 396; How v. Adams, 28 Vt. 544; Day v. Adams, 42 Vt. 510.BAKEWELL, J., delivered the opinion of the court.

This was an action of ejectment. There was a finding and judgment for defendants.

It appears that F. W. Schneider, Sr., owned and occupied as his homestead, at the date of his death, the property in question. By his last will he devised to his nephew, F. W. Schneider, two-thirds of this property, “to go into his possession,” the will reads, “after the death of my wife; and in case of his decease, to go into possession of my brother, John Schneider, or his heirs forever.” The rest of his property was bequeathed by Schneider, Sr., to his wife, for life.

Schneider, Sr., died in 1868; Schneider, Jr., died in 1869. John Schneider died in 1875, leaving a widow, the plaintiff Barbara, to whom he left all of his property by will. The other plaintiffs are the heirs-at-law of Schneider, Sr., whose widow, Eva Catherine, married defendant Hoffman, and died in 1878, having bequeathed all her property to Hoffman. The premises in question were never worth more than $3,000, and did not exceed eighteen square rods in area. Defendants were in possession when this suit was begun.

The question which this record presents for our determination is as to the right of the husband to dispose of the homestead by will. Nothing appears as to any minor children of Schneider, Sr., and it will be taken that there were none. If the husband could, at the date of the death of Schneider, Sr., under the existing homestead-law, dispose of his property by will, Barbara Schneider should have recovered two-thirds of the property, and the judgment in that case is erroneous.

The homestead law, as it existed in 1868, has been modified by subsequent enactments (Rev. Stats., sects. 2693, 2694; Acts 1875, p. 60); but the statute in force at Schneider's death provides (Rev. Stats. 1865, p. 450, sect. 5) that 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, 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 seized; provided, that such children shall, by force of this chapter, only have an interest in such homestead until they shall attain their majority.” Under this provision it is held that where there are no minor children the widow takes an absolute...