50 Kan. 86 | Kan. | 1892
The opinion of the court was delivered by
This was an appeal from an order of the probate court directing the sale of real property. A. B. Hyatt was the owner of a quarter section of farming land in Labette county, which was occupied by himself and family as a homestead. He died testate on July 17, 1887, and left surviving him a widow and several children, all of whom had reached majority, and were occupying homes of their own. By the terms of the will, there was devised to the widow such portion of the testate property as might be allowed by law, and to his son Sherman Hyatt the southwest 40 acres of the homestead. But the record fails to show what disposition was made of the remainder of the property. Claims were allowed against the estate to the amount of $612.13, and the personal property belonging to the estate was insufficient to pay the debts and costs of administration. The widow continued to occupy the farm as a homestead, and Sherman Hyatt, to whom the deceased had leased the farm on March 1, 1887, occupied a portion of the house on the real estate, and was in possession of the same as a tenant. On January 11, 1888, when the executor ascertained that the personal property was insufficient to pay the debts of the estate, he asked for authority to sell the southeast quarter of the homestead for the purpose
The order of the probate court directing the sale of the southeast 40 acres of the homestead should have been affirmed. It has been settled that the death of the owner of the homestead does not transfer the title absolutely and unconditionally to the widow and children. It descends to them the same as other real estate owned by the deceased, except that it is subject to the homestead interests. So long as it retains its homestead character it cannot be sold to pay ordinary debts, nor can there be a compulsory division and distribution. While it is so occupied it may be conveyed by the persons in whom the homestead interests vest, and the
As the case was tried in the district court upon an agreed statement of facts, this court is warranted in directing the