Weaver v. Chicago

Decision Date09 November 1907
Docket Number15,046
Citation76 Kan. 540,94 P. 273
CourtKansas Supreme Court

Decided July, 1907.

Error from Jackson district court; MARSHALL GEPHART, judge.

Judgment reversed.



1. HOMESTEAD--Exemption Applies to Surviving Husband or Wife. Although under the provision of the Kansas constitution that "a homestead . . . occupied as a residence by the family of the owner . . . shall be exempted from forced sale under any process of law" (Gen. Stat 1901, § 235) a right to exemption cannot originate without the existence of a family--of a household consisting of more than one person, yet, when the homestead character has once attached, it may persist for the benefit of a single individual (either the husband or the wife) who is the sole surviving member of the family. The case of Ellinger v. Thomas, 64 Kan. 180, 67 P. 529, overruled.

2. HOMESTEAD--Creditors of the Widow--Time of Incurring Indebtedness. Where a wife after the death of her husband continues to reside upon the family homestead, although she is its sole occupant, it is exempt against her own creditors as well as against the creditors of her husband's estate, irrespective of the time the indebtedness was incurred, and without regard to which spouse held the legal title to the property during their married life.

John D. Myers, for plaintiff in error.

Charles Hayden, for defendants in error.



The First National Bank of Chicago obtained a personal judgment against Mary E. Weaver, upon an indebtedness which originated in 1905, and caused an execution to be levied upon real estate. She brought a suit to enjoin its sale, claiming that it was exempt, and being denied relief prosecutes error. The property was at one time the homestead of the plaintiff in error and her husband--he having the legal title to one of the lots of which it was composed, she that of the other. During their married life he executed and recorded a deed to her of the lot standing in his name. In his will, however, he treated both lots as belonging to him, devising a life-interest therein to his wife and the remainder to their children. He died in 1881. Mrs. Weaver elected to take under the will and continued to occupy the property with the children, all of whom finally became of age and moved away, leaving her in its sole occupancy, this being the situation when the judgment was rendered and the execution levied.

From this statement it is clear that Mrs. Weaver held the property free from any claim that might be made by a creditor of her husband. Such is the doctrine announced in Cross v. Benson, 68 Kan. 495, 75 P. 558, 64 L. R. A. 560, with which the court is entirely satisfied--a doctrine derived from the words of the constitution itself, without the aid of any broadening statute. But whether it could be levied upon for the satisfaction of her own debt is a very different question. In volume 21 of the Cyclopedia of Law and Procedure, at page 578, it is said, principally upon the authority of Keyes v. Cyrus, 100 Cal. 322, 34 P. 722, 38 Am. St. Rep. 296:

"Where a homestead has vested in the surviving husband or wife it is not only exempt from the debts of the deceased spouse, but also from the debts of the survivor, whether the latter obligations were incurred prior or subsequent to the death."

The California statute construed in the case cited provided for the setting apart to the widow of a homestead out of the estate of her deceased husband, but did not in terms make it exempt from liability for her debts. The court, however, held, disapproving on this point Estate of David Walley, 11 Nev. 260, that a legislative purpose to create such exemption should be inferred, saying:

"The manifest object of the section is the support of the family, and to make provision for their support and maintenance. These demands of the family are deemed superior to those of heirs or creditors. . . . A homestead may be set apart to the widow, even though the estate be insolvent, and the property so set apart constitute the entire estate of the decedent; but if the homestead thus set apart to her could be immediately taken in execution by one of her creditors it would fail to be available for her use or support, and it might happen that her creditor would fare better than a creditor of the decedent whose money had perhaps been used to purchase the very property so set apart." (Page 326.)

The substance of this argument can be applied with plausibility to our own constitution, which reads: "A homestead . . . occupied as a residence by the family of the owner . . . shall be exempted from forced sale under any process of law." (Gen. Stat. 1901, § 235.) It surely requires no undue straining of the rule that homestead laws are to be liberally construed to promote their beneficent purpose to say that the framers of this provision never intended that property withheld from the husband's creditors for the benefit of his widow might yet be seized upon to satisfy debts which she had made. Whenever circumstances exist, therefore, that enable the widow to invoke the aid of the law at all, it would seem that she should be protected even against process founded upon her own obligations. It must be confessed, however, that this proposition is in irreconcilable conflict with the principle declared in Ellinger v. Thomas, 64 Kan. 180, 67 P. 529. The precise matter there decided was, as expressed in the syllabus, that "a homestead claimant whose wife is dead, and whose children have grown to maturity and moved away and ceased their dependence on him and no longer constitute part of his family, no one else being associated with him in the family relation, cannot continue to retain the homestead exemption." The reasoning upon which this conclusion was based is exhibited by this excerpt from the opinion:

"The constitutional exemption is for the benefit of the family, and if there be no family there can be no exemption. The broader terms of the statute may sometimes extend the exemption to a single person, as was shown in Shirack v. Shirack [44 Kan. 653, 24 P. 1107], but the constitution limits the exemption right to families. The word 'family' denotes a collective and communal body, and not a single individual. No one can be his own family. There is no more reason for continuing the homestead exemption to a sole adult survivor of the family than there would be to confer it on him in the first instance. The latter, we know, has not been done, and before it can be said that the former has been done some warrant must be found in the law for saying it. We know that constitutions and statutes allowing exemptions are liberally construed in favor of exemption claimants, but, nevertheless, the spirit and intent of the exemption privilege must be found in the words of the exemption grant, looked at in the light of its object, and not utterly beyond such words, or in opposition to them. The homestead interest is not an estate in land. It has been sometimes spoken of in loose and inaccurate speech as an estate, but only to characterize it as a right secured by law. It is an exemption of land under stated conditions. If the conditions do not exist, or having once existed are at an end, the exemption ceases. The views above expressed are in harmony with the rule which the text-writers have collected out of the various decisions. (Waples, Hom. & Exem. ch. 3, subtitle, 'Claiming after Loss of Family.')" (Page 185.)

As already stated, adherence to the view thus expressed must be fatal to the contention of the plaintiff in error. It cannot be said here, as it was in Cross v. Benson, 68 Kan. 495, 75 P. 558, 64 L. R. A. 560, that the widow was herself "the family of the owner" (syllabus), in the sense in which the expression was there used. The legal title appears to have been in her at the time of her husband's death. But aside from that consideration, where the property is sought to be taken to satisfy her debt, she must be deemed to be herself the owner. The question therefore is fairly presented here, as it was in Ellinger v. Thomas, 64 Kan. 180, 67 P. 529, whether the exemption which has once attached to property in consequence of its being occupied as a residence by the family of the owner continues for the benefit of one spouse after the death of the other and the dispersion of the rest of the household. The court is of course always reluctant to treat as still open a question which it has once definitely passed upon. But in matters involving the interpretation of the constitution it is usual and proper to give less force to the doctrine of stare decisis than in other cases. One reason for this is thus stated in volume 26 of the American and English Encyclopaedia of Law, at page 162:

"A reason advanced to support this distinction between decisions construing statutes and those construing the constitution is that if the people are dissatisfied with the construction of a statute the frequently recurring sessions of the legislature afford easy opportunity to repeal, alter, or modify the statute, while the constitution is organic, intended to be enduring until changed conditions of society demand more stringent or less restrictive regulations, and if a decision construes the constitution in a manner not acceptable to the people the opportunity of changing the organic law is remote. "

Doubtless substantial justice may often be better promoted by adhering to an erroneous decision than by overthrowing a rule once established. But in so important a matter as the enforcement of the homestead rights guaranteed by the constitution the court feels an obligation to reexamine a difficult and doubtful question in the aspect of any new...

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    • Kansas Supreme Court
    • March 21, 1990
    ...justice is better promoted by adhering to that erroneous decision than by overthrowing the rule established. See Weaver v. Bank, 76 Kan. 540, 540-45, 94 P. 273 (1907). Neither K.S.A.1988 Supp. 60-19a01 nor -19a02 alter the right of the plaintiff to a civil jury trial or deprive the injured ......
  • Okla. Cnty. v. Queen City Lodge No. 197, I. O. O. F.
    • United States
    • Oklahoma Supreme Court
    • February 13, 1945
    ...R.C.L. 1008; 14 Am.Jur. 287, 291, 341-345; 15 C.J. 956-959; 21 C.J.S., Courts, § 193, pp. 322-326; Weaver v. First Nat. Bank, 76 Kan. 540, 94 P. 273, 16 L.R.A.,N.S., 110, 123 Am.St.Rep. 155. And the question of whether the rule shall or shall not be followed in any particular case rests in ......
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    • Oklahoma Supreme Court
    • February 13, 1945
    ... ... 7 R.C.L. 1008; 14 Am.Jur ... 287, 291, 341-345; 15 C.J. 956-959; 21 C.J.S., Courts, § 193, ... pp. 322-326; Weaver v. First Nat. Bank, 76 Kan. 540, ... 94 P. 273, 16 L.R.A.,N.S., 110, 123 Am.St.Rep. 155. And the ... question of whether the rule shall or shall ... ...
  • Postlethwaite v. McCabe
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    • Kansas Supreme Court
    • March 9, 1918
    ...and applied to the case of a widow occupying the homestead after the death of her husband. This was carried still further in Weaver v. Bank, 76 Kan. 540, 94 P. 273, holding that the homestead right may persist in the without regard to which held the legal title or the time when the indebted......
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  • Kansas Homestead Law
    • United States
    • Kansas Bar Association KBA Bar Journal No. 65-04, April 1996
    • Invalid date
    ...966 (1901); Barbe v. Hyatt, 50 Kan. 86, 89, 31 P. 694 (1892); Gatton v. Tolley, 22 Kan. 678 (1879). [FN324]. Weaver v. First Nat'l Bank, 76 Kan. 540, 94 P. 273 (1907) (overruling Ellinger v. Thomas, 64 Kan. 180, 67 P. 529 (1902)). [FN325]. Solomon Nat'l Bank v. Birch, 121 Kan. 334, 246 P. 1......

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