Towle v. Towle

Decision Date12 February 1910
Docket Number16,289
Citation81 Kan. 675,107 P. 228
PartiesHOWARD H. TOWLE, a Minor, etc., et al., Appellees, v. HARRIET H. TOWLE, Appellant, and GEORGE A. TOWLE et al., Appellees
CourtKansas Supreme Court

Decided January, 1910.

Appeal from Clay district court; SAM KIMBLE, judge.

Judgment affirmed.



1. HOMESTEADS--Statute of Descents and Distributions Not in Conflict with Constitutional Provision. Sections 5 and 6 of the statute of descents and distributions (Gen. Stat 1901, §§ 2507, 2508), providing for the distribution of the homestead of an intestate, are not in conflict with the provision of section 9 of article 15 of the constitution exempting the homestead from forced sale under any process of law.

2. HOMESTEADS -- Construction of Homestead Laws. The homestead laws embrace not only the constitutional provision (art. 15, § 9) but also the provisions with reference to the homestead in the statute of descents and distributions (Gen. Stat. 1901, ch. 33) and the statute of exemptions (Gen. Stat. 1901, ch. 38).

3. HOMESTEADS -- Partition--"Forced Sale." The sale of a homestead in partition under the provisions of section 6 of the statute of descents and distributions (Gen. Stat. 1901, § 2508) is not a "forced sale" within the meaning of that term as used in section 9 of article 15 of the constitution.

4. HOMESTEADS--Legislative Powers Respecting Homestead Right. While the legislature is without power to enact a law limiting or restricting the homestead right guaranteed by section 9 of article 15 of the constitution, it has the power to enact laws which in effect add to or increase the exemptions provided by the constitution.

F. B. Dawes, and R. C. Miller, for the appellant.

C. C. Coleman, and F. L. Williams, for the appellees.




This was a suit for partition of a farm consisting of 160 acres in Clay county. The land belonged in his lifetime to Jeremiah H. Towle, who died in January, 1907, intestate, leaving surviving him his widow, Harriet H. Towle, two sons, George A. Towle and Fred E. Towle, and a number of grandchildren, who are the children of a deceased son and daughter. The suit was brought by three of the grandchildren. The petition alleged that all of the children of Jeremiah H. Towle and Harriet H. Towle have arrived at the age of majority; that Harriet H. Towle is the owner of an undivided one-half interest in the land; set out the respective interests of each of the children and grandchildren, and asked for partition.

In her answer Harriet H. Towle alleged that the land in question was occupied by Jeremiah H. Towle and herself as husband and wife as their homestead at the time of his death, and that after his death she continued to occupy it as her homestead; that she has no other residence or homestead of any kind, and that it is her intention to occupy the same as her homestead so long as she lives. She therefore prayed that there be no partition of the premises.

The court sustained a demurrer to this defense and the cause proceeded to trial, resulting in a judgment finding that there was no homestead right in the premises which prevented the same from being partitioned. The decree provided for the partition of the land in severalty, and appointed three commissioners to make partition, with directions to appraise the value of the land and the separate interests therein if the commissioners should be of the opinion that the land could not be divided without manifest injury to the interests of the owners. From the judgment and rulings of the court Harriet H. Towle appeals.

Her contention is that the land is not susceptible of partition so long as she continues to occupy it as a homestead, notwithstanding the children have all arrived at the age of majority. The court sustained the demurrer on the ground that partition is authorized by sections 5 and 6 of the statute of descents and distributions (Gen. Stat. 1901, §§ 2507, 2508). These sections read as follow:

"If the intestate left a widow and children, and the widow again marry, or when all of said children arrive at the age of majority, said homestead shall be divided, one-half in value to the widow and the other one-half to the children.

"Such division may be made by the mutual consent of all the parties interested, as hereinafter provided for the allotment of other real estate; or, if the said homestead is not susceptible of division, without manifest injury to the premises, or to the rights of the parties interested, the same may be sold as provided in the code of civil procedure for the sale of real estate not susceptible of partition."

The appellant contends that these sections of the statute are in direct conflict with the homestead provision of the constitution, and therefore void. The theory of counsel for the appellant is stated in the following extract from the brief:

"Under the provision of the last section of the statute quoted above, without taking into consideration the provisions of the constitution, this court has several times decided that when the deceased left a widow and children the homestead could be divided when the youngest child arrived at the age of twenty-one years. We think all of these decisions were erroneous. This court prior to a few years ago universally held that after the youngest child arrived at the age of twenty-one years the homestead interests of the family ceased and the property could be sold on execution for the debts of the deceased owner, and that the interests of the widow could then be sold for her own debts. All of this on the theory that when the youngest child arrived at the age of twenty-one years the homestead interests ceased.

"Now we believe that all of these decisions were erroneous, that the court arrived at its conclusions by a construction of the statutes alone, without any consideration of the constitutional provision relating to homesteads, and we think that this court has so held in at least two important cases.

"If the constitution absolutely gives a homestead interest to the family of the deceased owner so long as such family resides upon the land, and the wife living upon the homestead alone or with children over twenty-one years of age will, under the law, be deemed the family of the owner, then it follows that paragraphs 2507 and 2508 of the General Statutes of 1901 are squarely in conflict with the constitution of the state, and void."

For more than forty years the statute in question has been assumed by the courts and the profession, as well as by the legislature, to be in perfect harmony with the homestead provision of the constitution. In none of the decided cases where the statute has been construed has it ever been suggested that any conflict exists between the statute and the constitution. The case therefore presents a phase of the homestead law which must be regarded as novel in the extreme.

In Vandiver v. Vandiver, 20 Kan. 501, the syllabus reads:

"Where a husband and wife occupied certain real estate as a homestead at the time of the husband's death, and their children were all of age, and none of them occupied the residence of the intestate at his death, nor thereafter, but the widow continued to occupy it as her home after the decease of her husband, the premises are the absolute property of the widow and her children; and the children, being all of age, are entitled to have the premises partitioned, one-half in value to go to the widow, and the other one-half in value to go to the children. If the homestead is not susceptible of division, the same may be sold, and the proceeds divided."

In the syllabus in Dayton v. Donart, 22 Kan. 256, it was said:

"So long as said widow and children continue to occupy the homestead, and the widow does not marry again, and one or more of the children remain minors, they may hold the property as their homestead."

The case of Brady v. Banta, 46 Kan. 131, 26 P. 441, was one where the widow and children of the owner continued after his death to occupy the premises as a homestead. The widow remarried, but continued with her children to occupy the property as a homestead. It was held that by reason of the continued occupation of the land by the children its homestead character was not destroyed by the marriage of the widow, but that her marriage made the property subject to partition between her and the children.

Other cases recognizing the validity of the statute are: Hafer v. Hafer, 33 Kan. 449, 6 P. 537, and 36 Kan. 524; Barbe v. Hyatt, 50 Kan. 86, 31 P. 694; Trumbly v. Martell, 61 Kan. 703, 60 P. 741; Mitchell v. Mitchell, 69 Kan. 441, 77 P. 98.

In Trumbly v. Martell, supra, referring to the time when partition can be had, it was said in the opinion:

"This can be done only when the widow marries or when all of the children arrive at the age of majority. If the mother remain a widow, there can be no partition until all of the children arrive at majority. She may then be allowed one-half in value of the property, the other half going to the children. In case the widow marry and a division of the homestead is had, the half set off to the children would still be their homestead." (Page 705.)

The foregoing are a few of the many cases which might be cited involving the construction of these provisions of the statute authorizing the partition and division of lands occupied as a homestead by the widow and children of an intestate when the youngest child arrives at majority or in case the widow marries. In none of them was it even suggested that the provision authorizing the partition and distribution of the homestead under such circumstances is contrary to the constitutional guaranty of the homestead right. And in fact, there...

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14 cases
  • Cole v. Coons
    • United States
    • Kansas Supreme Court
    • April 5, 1947
    ... ... G.S.1868, ch. 33, sec. 5 ... The ... validity of this statute was sustained in Towle v ... Towle, 81 Kan. 675, 107 P. 228, 27 L.R.A.,N.S. 559. This ... continued to be in force until 1939, when it was repealed by ... the Probate ... ...
  • Postlethwaite v. McCabe
    • United States
    • Kansas Supreme Court
    • March 9, 1918
    ... ... the indebtedness to pay which it was sought to be sold was ... incurred. Another modification was made in Towle v ... Towle, 81 Kan. 675, 107 P. 228, two members of the court ... dissenting, wherein it was decided that a sale in partition ... is not a ... ...
  • Johnson's Estate, In re
    • United States
    • Kansas Supreme Court
    • March 8, 1969
    ...was that the legislature could enact no law restricting the homestead right guaranteed by the constitution. (Towle v. Towle, 81 Kan. 675, 107 P. 228, 27 L.R.A.,N.S., 559.) The policy of this state has always been to zealously protect the family rights in homestead property, and this court h......
  • State v. The United States Fidelity and Guaranty Company
    • United States
    • Kansas Supreme Court
    • February 12, 1910
  • Request a trial to view additional results
1 books & journal articles
  • Kansas Homestead Law
    • United States
    • Kansas Bar Association KBA Bar Journal No. 65-04, April 1996
    • Invalid date
    ...P.2d 286, modified, 203 Kan. 262, 452 P.2d 286 (1969); State ex rel. Apt v. Mitchell, 194 Kan. 463, 399 P. 2d 566 (1965); Towle v. Towle, 81 Kan. 675, 107 P. 278 (1910). See also Judge James A. Pusateri's unpublished decision in Wesley Medical Center v. Conner (In re Conner), No. 83-10575, ......

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