161 Mo. 238 | Mo. | 1901
This suit was instituted by J. A. Riley, Administrator of the estate of John T. Riley, deceased, but since it has been pending in this court J. A. Riley died, and the present plaintiff has been duly appointed administrator of said estate, and upon his motion substituted as plaintiff herein instead of J. A. Riley, deceased.
On the seventh day of December, 1896, the administrator of John T. Riley, deceased, filed his petition in the probate court of Jackson county, in which it was alleged that said John T. Riley died seized of the following described real estate situate in the county of Jackson aforesaid, to-wit: The west half of the northeast quarter and the east half of the northwest quarter and the northwest quarter of the southeast quarter of section 20, township 48, and range 30. It is alleged that
Plaintiff therefore prays the court for an order setting apart homestead to all of said defendants and assigning dower to the said Talitha Eiley as their rights may appear.
The probate court appointed commissioners, who made the following report:
‘We} the undersigned commissioners appointed by the probate court of Jackson county, Mo., at the February term, 1897, being the twentieth day of March, 1897, cause No. 1934, to set out the homestead from the real estate of J. T. Eiley, deceased, and also to set out the dower of Mrs. Talitha Eiley, widow of said J. T. Eiley, in the real estate of said J. T. Eiley, deceased, beg leave to report as follows:
“We met and after being qualified, as evidenced by affidavit herewith submitted, and after notifying the parties in interest, we proceeded to view and value the real estate of said J. T. Eiley, deceased.
cWe value the said real estate as follows:
No. Acres. Description of Sec. See. Twp. E. Yaluation.
40 aeres. N. E. 1-4 of N. W. 1-4 20 48 30 $1,200 00
40 acres. S. E. 1-4 of N. W. 1-4 20 48 30 1,000 00
*242 40 acres. N. W. 1-4 of N. E. 1-4 20 48 30 1,000 00
40 acres. S. W. 1-4 of N. E. 1-4 20 48 30 800 00
40 acres. N. W. 1-4 of S. E. 1-4 20 48 30 1,100 00
200 Totals $5,100 00
“Thus showing the total valuation of said real estate to aggregate $5,100.
“We then proceeded, quality and quantity'of land being relatively considered, to allot and set apart as such homestead, valued at $1,500, the northwest quarter of the southeast quarter, and twenty acres off of the south side of the southwest quarter of the northeast quarter of section 20, township 48, and range 30.
“We also find the value of the interest of the said widow, Mrs. Talitha Riley, in the homestead so set out to be $1,500 for and during her natural life, which sum does not equal one-third of the value of all real estate of which the said J. T. Riley died seized.
“We, therefore, proceeded to allot and set out as dower for the widow, Mrs. Talitha Riley, south ten acres of the north half of the southwest quarter of the northeast quarter, section 20, township 48, range 30, valued at $200 which, together with the value of the interest of said Mrs. Talitha Riley in the homestead aforesaid mentioned, equals $1,700, being one-third of the value of all the real estate of which the said J. T. Riley died seized.
“We also set out as roadway twenty feet off the south side of the southeast quarter of the northwest quarter of said section 20, township 48, range 30.”
The probate court approved this report, overruling exceptions of the widow, Talitha Riley, and she appealed to the circuit court. The case came up at the September term of the circuit court of Jackson county, at Independence, 1897, and
“It is agreed between the parties hereto that the valuation placed by the commissioners upon the land out of which homestead and dower is to be set out are correct as to the whole and as to the separate tracts and that the residence of the deceased was upon the northwest quarter of the southeast quarter of section 20, township 48, range 30.
“That the widow, Talitha Riley, is 37 years of age, and that the children’s ages are as follows: Lou Lee Riley, 14 years; May Belle Riley, 11 years; and Alverta Riley, 3 years of age.
“That Lou Lee Riley and May Belle Riley are the stepchildren of the widow, Talitha Riley, and do not reside with her on said homestead, but do reside, and have since babyhood resided, with their maternal grandmother, and are now in delicate health, requiring the constant care of said grandmother and can not at present reside upon said lands.
“It is agreed by the parties that upon the above facts the court shall determine whether or not said report shall be approved, and if not approved shall determine how much, if any, and what land is to be added to that part which has been set apart by said commissioners to the widow as dower, it being agreed that the valuation of the part set out as homestead to the widow and minor children is correct.”'
On November 27, 1897, the circuit court approved the report of the commissioners, and defendant, Talitha Riley, excepted. Within four days she filed her motion for new trial as follows:
“Comes now said Talitha Riley and ahs the court to grant her a new trial in said cause:
“1st. Because the finding of the court is against equity and the law.
*244 “2nd. Because the finding of the court is against the evidence and against the pleadings and the agreed statement of facts submitted in this cause.”
On December 11, 1897, the court overruled this motion for a new trial, and defendant, Talitha Riley, excepted. She then filed her affidavit for appeal which was .allowed.
The minor defendants were represented by their guardians.
It is clear from the reading of section 5439, Revised Statutes 1889, that upon the decease of the husband and fattier the homestead estate owned by him at the time of his demise passed to his widow and children jointly, until the children become of age. [Rhorer v. Brockhage, 86 Mo. 544.] The widow and minor children are not tenants in common in the homestead estate (Canole v. Hurt, 78 Mo. 649), but their rights are more in the nature of that of joint tenants, as they may occupy the homestead jointly as long as the right to do so exists.
The contention of the widow that she and each one of the minor children are entitled to a certain or definite part, for the time each should have it, and that such interest has a fixed value, is untenable, for it is plainly not in accord with the law or its spirit. This could riot be so unless they were tenants in common, which they are not.
The value of the lands of J. T. Riley was $5,100. The commissioners set out $1,500 worth of land as a homestead, and then added to this $200 in addition as a dower for the widow, making in all $1,700, and Mrs. Riley’s contention is, that her interest in this $1,500 homestead ought to have been computed and then enough land added to the interest so found to make up her $1,700 dower for life. ' Or, in other words, if she had less than $1,500 interest in the homestead, the whole $1,500 ought not to have been deducted from her dower,
In the case at bar the commissioners proceeded in accord
The. judgment should be affirmed, and it is so ordered.