Buckler v. Brown

101 Ky. 46 | Ky. Ct. App. | 1897

CHIEF-JUSTICE LEWIS

delivered the opinion op the court:

James Brown having died the owner and in possession of a tract of land containing about 27 acres, an action was instituted by appellant, a creditor, to settle his estate, which ■was insolvent, and for sale of the land to pay debts against it; and this is an appeal from so much of the judgment rendered as directs an allotment of a homestead in the landl not exceeding in value fl,000 to appellees, the widow and infant children.

It appears that Mary J. Brown, the widow, owned a parcel of land, containing about 1 acre, adjoining the tract of her husband, and upon that was the dwelling house of thd family at the time and for many years prior to his death.

In the case of Mason v. Columbia Finance & Trust Co., 99 Ky., 117, the husband and wife owned two adjoining tracts of land, the family residence being upon that belonging to ber, and the husband having made an assignment to creditors, an action was brought to sell his- tract, which was done. There arose the question whether he, though residing with his family upon the tract owned by his wife, wa.s still entitled to a homestead in his own, and in deciding that question this language was used: “The appellant, in contemplation of the statute looking to both the letter and spirit of its provisions, was living on the landi to which the -right was asserted; it was all one tract, so regarded' by the parties, used, cultivated and claimed as one tract.”

Although that case was unlike this in that there a claim was asserted by the husband to homestead in his own land, while here the claim is by the wife to homestead, not in her own, but in his; still the essential and decisive legal proposition was determined that though the husband actually resided with his family upon a tract belonging to his wife, his own adjoining tract, when the two are cultivated and used together, is, in contemplation and for all purposes of the statute, his homestead, and being so the statute in terms requires it. set apart for the use of the widow and unmarried infant children, notwithstanding, as has been heretofore held by this court, she may herself own another tract of land.

In the case of Lowell v. Shannon, 60 Iowa, 713, it was held that where the husband and wife own contiguous tracts of land, and occupy the two tracts as a homestead, with the dwelling on the land of the wife, she was entitled to a homestead in the adjoining land of the husband.

The circumstances of that case, which, was cited with approval in Mason v. Columbia Finance & Trust Co., are precisely those of this case, and we think thei conclusion there reached accords with the purposes -and reasons of our own statute.

Judgment affirmed.

The court delivered the following response to a petition for rehearing March 27, 1807:

According to no decision ever rendered by this court can tlie value of a widow’s own distinct tract or parcel of land be estimated in determining the quantity of land left ' by her deceased husband shall be set apart to her as a homestead. Appellee in this case is entitled to such quantity of land of her deceased husband as is of the value of $1,000, without reference to the tract she owned as of her own right.

Petition for rehearing overruled.