68 Mo. 388 | Mo. | 1878
This was an application to the court of probate and common pleas of Greene county, by the widow of Caleb Brown, asking that 120 acres, owned by her husband in his life-time, but then occupied by his administrator, should be declared her property in fee simple, under the 5th section of the homestead law, as it was in 1865, with a further petition that the administrator be or
As Caleb Brown died in 1874, the plaintiff'’s rights are of course to be determined by the law as it was at that date, without regard to changes subsequently made, although made before the commencement of this suit. One of the questions presented by the state of facts is, whether the voluntary abandonment by the plaintiff of her husband, previous to his death, destroyed her right to the homestead, or in other words, whether the husband, without any children, was the head of a family within the meaning of the home
Another poiut in this case is, that the dwelling house and appurtenances thereto were on the eighty acres in which Brown had only a life estate, and therefore, upon his death the homestead was gone; at all events that she could only claim the same homestead which the husband was entitled to, and as the entire tract .contained 200 acres, and he could not claim beyond 160, without regard, to value, her rights, if they did not cease altogether, would be confined to such portion of the 120' acres as would, with the eighty acres on which the house stood, make 160 acres. There is no doubt that whilst Brown was alive his homestead was confined to 160 acres, and, therefore, he could have been obliged to relinquish forty acres in some part of the tract of 200 acres. But we may suppose a case, in which the entire eighty on which his home was built, was entirely washed away by a flood, or otherwise destroyed by some convulsion of the earth, his homestead rights would not be lost by such accident, and as the 120 acres still left would be less in quantity than the statute allowed him, he could have claimed the whole unless it exceeded in value the $1,500. His widow would succeed to his rights, and the destruction of all title to the eighty acres on which the house stood would operate as effectually so far as she is concerned, as a destruction by water or earthquake. Only 120 acres were left on which she could claim a homestead, altogether less than the quantity allowed by the statute.
It is also insisted that Brown ceased to be a housekeeper after he rented to farm to Hall and he occupied but one room in the house. The tenancy of Hall did not, we think, divest Brown of his rights. It was simply an agreement to procure Hall’s services upon a contract to pay him by a division of the profits. The invitation to him to occupy the house in order to procure the necessary attention to secure Brown’s own comfort, did not make Hall the head of the house or deprive Brown of the control over it. which he had previously exercised-
A further objection is made that the action should have been ejectment, to authorize the court to order a delivery of the possession. But this suit is brought under the 5th section of the homestead act, which provides that the “probate court having jurisdiction of the estate of such deceased housekeeper, or head of a family, shall, when necessary, appoint three com • missioners to set out such .homestead to the person or persons entitled thereto.” This statute, it may be observed here, evidently did not have in view a case where the applicant or applicants were not in possession, whilst it is equally obvious that this court (the probate court) was the court to which exclusive jurisdiction over the subject was intrusted. It was clear that no appointment of commissioners was needed to ascertain the value or quantity of the land claimed, and it would have been a useless expense to have made such appointment. The fact that the claimant in this case was not in possession, was a fact not anticipated by the Legislature, and, therefore, was not provided for, but as this court had undoubted authority to ascertain and declare the extent of the homestead, we see no reason why the same court might not make the necessary orders on the administrator to surrender the possession. To deny suc^ authority would be only requiring two suits to effectuate a purpose which might as well b.e carried out in one. The judgment is affirmed.
Affirmed.