83 Mo. App. 253 | Mo. Ct. App. | 1900
The defendant Young is the administrator of the estate of Eritz Dickmeyer, who died in 1896. At the time of his death he was the head of a familyand occupied as a homestead a certain farm in Lincoln county. He left surviving him four minor children. The defendant was appointed curator of their estates. Dickmeyer had mortgaged his homestead, and the mortgage debt was unpaid at his death. Subsequently the land was sold under the mortgage, and after paying the incumbrance and the costs of sale, there was a surplus of the proceeds of sale amounting to $1,767.36. On July 23, 1897, the trustee in the deed of trust paid this surplus to Young. The latter made his first annual settlement of the estate of Dickmeyer in October, 1897. He failed to charge himself in the settlement with the amount received from the trustee. The settlement as rendered showed a balance in his hands of $66.54. The plaintiffs herein hold allowed de
It was decided by the supreme court in State ex rel. v. Mason, 88 Mo. 222, that a homsteader may mortgage his homestead and that his rights under the homstead law will remain and attach to the equity of redemption, and that if the right is asserted prior to the foreclosure of the mortgage, he will be entitled to hold the surplus arising under a foreclosure, not in excess of the value of the homestead. But under the decision in Casebold v. Donaldson, 67 Mo. 311, if he fails to make such claim prior to the foreclosure sale, he forfeits his right to the surplus, which was followed by this court in Pearman v. McKee, 79 Mo. App. 210. In such a case the supreme court-seems to treat the right of the homesteader in the equity of redemption as a mere exemption right. The facts in the case at bar bring it within the rule of these decisions, for it is in evidence that the children asserted their- homestead rights prior to the sale under the mortgage. But aside from that the homestead rights of the minors would have been protected without such claim, for the reason that upon the death of their father the statute
The deed of trust provided for a sale of the premises if there should be a default as to the debt, and in case of such sale it directed the surplus (if any) to be paid to Dickmeyer, “or his legal representatives.” The contention of plaintiff is that by the voluntary act of Dickmeyer the contingent homestead rights of his minor children were cut off by the direction in the deed of trust to pay the surplus to his (Dickmeyer’s) legal representatives, to wit, his executor or administrator. Unquestionably the ordinary meaning of the words “legal representatives” is executor or administrator, but the term may be used in its broader sense and may mean heirs. (Ewing v. Shannahan, 113 Mo. 188.) We think that the use of the word in its more extended meaning should be adopted in the present ease. It would be a forced and unreasonable conclusion that by the execution of the deed of trust Dickmeyer intended, in case of his death, to deprive his minor children of their homestead rights in the equity of redemption.
Eor the foregoing reasons we hold that the children of Dickmeyer during their minority are entitled to the usufruct of $1,500 of the money in the hands of the defendant. But we can conceive of no good reason for the retention of this money by the guardian. It would be to the interest of all parties to have the matter finally adjusted. We are therefore of the opinion that the judgment should be reversed and the cause remanded, with instructions to the circuit court xo
