Wyatt v. Bauer, 22996
| Citation | 332 S.W.2d 301 |
| Decision Date | 18 January 1960 |
| Docket Number | No. 22996,22996 |
| Parties | Valencia WYATT, Wayne T. Wyatt, George L. Bauer, Elizabeth Bauer, and Helen Jo Bauer, Plaintiffs-Appellants, v. Daisy BAUER, Robert F. Bauer, and Joseph Lee Bauer, Defendants-Respondents. |
| Court | Court of Appeal of Missouri (US) |
Crouch & Fitzgerald, Warrensburg, for appellants.
Orin J. Adams, Kingston, for respondents.
This is a proceeding to partition real estate. The facts are undisputed.
Francis Joseph Bauer died intestate February 5, 1956, a resident of the village of Hamilton, Missouri. He owned five lots on which was located his home. He was survived by his wife, Daisy Bauer, and five adult children. The plaintiffs are his children by a prior marriage; and defendants Robert F. Bauer and Joseph Lee Bauer are his children by Daisy Bauer. All are over the age of 21 years. He and Daisy Bauer had occupied the premises as their home from 1926 until the time of his death, and the widow has continued to live thereon.
Daisy Bauer was appointed administratrix. The deceased's personal property was inventoried at $400, and the real estate was valued at $10,000. In due time, the widow applied for the exempt personal property under Section 474.250; and also for her homestead allowance as provided by Section 474.290, V.A.M.S. She elected to take for her homestead allowance a value of $5,000 in the real estate. She did not ask for the allowances under Section 474.260.
The probate court entered judgment sustaining the application and awarded the widow the $400 exempt property, and found that the value of the real estate was $10,000; that she had elected to take 'an amount not exceeding 50% of the value of said estate as her homestead allowance * * *', as provided in Section 474.290 and ordered that she 'be allowed an undivided one-half interest in the real estate * * * as and for her homestead interest in said estate, and it is further ordered that Daisy Bauer, administratrix, * * * be, and she is hereby authorized and directed to execute and deliver to herself as the widow of * * * deceased, a proper deed conveying an undivided one-half interest in said real estate as her homestead interest in said estate'.
Such a deed was executed and placed of record. Thereafter, final settlement was made and the administratrix discharged, February 26, 1957, concluding the probate court proceedings. This partition suit was filed July 8, 1957. The parties do not question the validity of the probate court proceedings or the deed executed in compliance therewith. Therefore, we confine our decision to the issue of whether, under this record, the real estate can be sold in partition.
Plaintiffs' petition is brought on the theory that the children of Francis Joseph Bauer and his widow are tenants incommon; that the widow owns an undivided one-half interest in fee; and that each child owns a one-tenth interest in fee.
The widow's answer admits certain uncontroverted facts; and alleges that the children of deceased are the owners, as tenants in common, of an undivided one-half interest in the land, and that she 'is the owner of an undivided one-half interest in fee, as her homestead, under deed to homestead * * *; that said real estate is not subject to partition; that this court is without jurisdiction, and cannot legally decree a partition and sale of (her) homestead therein'.
The trial court found that 'the real estate * * * is not subject to partition and sale as prayed * * * which would include the sale of the homestead of * * * Daisy Bauer in said * * * real estate;' and dismissed plaintiffs' petition. They perfected their appeal to this court.
Since the parties admit that the title to the property is in fee according to the proportionate interest of each, we are of the opinion that title to real estate is not involved in the constitutional, jurisdictional sense, and that this court has jurisdiction of the cause. Constitution of Missouri, Article V, Sections 3 and 13, V.A.M.S.; Mack v. Mack, Mo., 281 S.W.2d 872, and Stewart v. Stewart, Mo., 269 S.W.2d 49.
It is agreed that the real estate cannot be divided in kind. The question is, can it be ordered sold and the proceeds distributed to the parties according to their respective interest?
In support of her contention that her homestead cannot be sold, the widow cites cases decided under the old homestead statutes, first enacted in 1865, and carried forward, with some amendments, into the 1949 revision as Section 513.475, 513.495, and 513.500. Under these sections, the homestead interest of the widow was for life, determinable upon her death or remarriage; and as to the minor children, an estate for years, determinable as each attained his majority. Moore v. Mansfield, Mo.Sup., 286 S.W. 353; Martin v. Martin, 313 Mo. 476, 485, 285 S.W. 92.
It is interesting, and unbelievable, to recall that when these homestead statutes were first enacted in 1865, they allowed the widow and minor children a homestead with a maximum value of $1,500, except in cities having a population of 40,000 or more, in which case the maximum value was $3,000; Section 513.475. These values have remained unchanged for 90 years. No doubt that is one of the many reasons the legislature, in 1955, rewrote our archaic and outmoded probate law on this subject. The new Act is found in Laws 1955, page 390 et seq. It became effective January 1, 1956. Mr. Bauer died February 5, 1956, and we must apply the new Act in deciding the question presented. At this point, it is well to mention that the 1955 Act was amended in several respects in 1957, see Laws that year, page 830 et seq. But those amendments are not controlling in the instant case.
The right of homestead is not a common law estate or right, but purely a creature of statute. Its nature and extent is governed by the law in force at the date of the death of the head of the family. Schowe v. Kallmeyer, 323 Mo. 899, 20 S.W.2d 26.
Section 138, Laws of 1955, now Section 474.290 V.A.M.S., is the new homestead statute. It repeals, at least by implication, old Sections 513.495 and 513.500, and makes an entirely new approach to the homestead estate created for a surviving spouse and unmarried minor children. There are no such children in this case, and we discuss the section relative to the rights of the widow only.
It provides, in substance, that upon the application of the surviving spouse, the probate court shall make an allowance ...
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Long v. Kyte
... ... Middleton v. Dudding, Mo., 183 S.W. 443, 444; Wyatt v. Bauer, Mo.App., 332 S.W.2d 301, 304. In the Middleton case this court stated, 183 S.W. 444: 'An ... ...