92 Mo. 647 | Mo. | 1887
The object of this suit is the assertion of a homestead and dower right on the part of Emilie Kaes, in certain property in Pacific, Franklin county, Missouri, on the corner of St. Louis street and Adelaide avenue, estimated to be worth from four thousand to six thousand dollars.
“1. I give and bequeath to my beloved wife, Emilie L. Hufschmidt, the ‘life insurance,’ which I have in the orders of the ‘ Odd Fellows’ ánd ‘Free Masons,’ in the state of Missouri.
“2. I give and bequeath to my beloved wife, E. L. Hufschmidt, the use and income of my house and5 property, on the corner of St. Louis street and Adelaide avenue, in the town of Pacific, county of Franklin, and state of Missouri, so long till the youngest of the children of my first wife, Amelia Hufschmidt, deceased, shall become of age, or when the said children of my first wife, deceased, can agree with my beloved wife, Emilie L., to sell the aforesaid property, including the house.
“ 3. After such sale, the whole amount so realized shall be, divided into eight equal shares or parts, so that each of the seven children left by my first wife, deceased, viz : Frank, Emma, Otto, Fritz, Augusta, Greorge, and Alice, and Louisa, the only child with my present wife, shall receive one share or part. Should, however, any of these die before such division is made, without
“4. For the use and income of the aforementioned property, house and lot, on St. Louis street and Adelaide avenue, Pacific, Missouri, my beloved wife shall pay the interest of my debts, and keep the premises in good order, and raise the minor children until they become of age; but for this she shall have also the use of .all the furniture.
“5. All of my other real estate, consisting of six lots and house, in W. C. Ink’s addition to Pacific, and .a tract of land of thirteen and twenty-five hundredths acres, between the Missouri Pacific railroad and Brush Creek, in Keathy’s addition to the town of Pacific, Missouri, my beloved wife shall sell to the best advantage, to settle and pay my contingent debts.
“ 6. Emilie L. Hufschmidt, appointed sole executrix. Dated July 29, 1879.”
This will having been probated, Mrs. Hufschmidt, the executrix, declined in writing, in proper manner, to execute the will, whereupon William Meyersick was granted letters testamentary with the will annexed. From the life insurance policies thus bequeathed her, and rents of the- premises, Mrs. Hufschmidt received .about forty-five hundred dollars in cash, and some three hundred and eighty-five dollars worth of household goods and furniture, as well as enjoyed the house rent free, till August 20, 1880, when, wearying of widow’s weeds, she married her co-plaintiff, Phillip Kaes, and on the second day afterwards removed with her family of minor children, and newly-wedded conjiox, to his house in St. Louis county, where she continuously lived up to the time of the trial, having taken with her most of the beds and other furniture — selling a portion of it and leaving the rest with an adult son of her husband by his first wife, who had occujfied the hoiise with her
The testimony of Mrs. Kaes, as to her intention in removing, is expressed in this language: “I did not leave any of the goods there for the purpose, ór with the intention of returning ;■ had no special intention of returning when I left. I still live in St. Louis county with my husband; do not wish to occupy this property with my husband, and live in it. I can’t say that I do intend to return to it, and don’t say that I do not; can’t say that I would occupy the property should Mr. Gross give me the privilege ; I would have to see Mr. Kaes first. I don’t want rent; I want Mr. Gross to pay me that, what I claim as my homestead. I do not know how much it is; I have not made the calculation.”
About four thousand dollars, including the school mortgage debt, was proved and allowed against the estate of Hufschmidt, after Meyersick took it in charge and he, after selling some other lands, obtained a general order for the sale of the land in dispute, as well as. two other lots for the payment of debts, and at the first sale, in June, 1881, the property was struck off to Mrs. Kaes for seventeen hundred and twenty-five dollars, but this sale being disapproved, the administrator sold the-property mentioned for thirty-eight hundred dollars, in September, 1881, which sale was approved by the court, and a deed was made to defendant Gross, March 10,1882, who thereupon took possession of the property and leased portions of the same to his co-defendants. Meyersick, the administrator, having paid off the unsecured debts with the money thus realized, satisfied the school mortgage aforesaid, and had it so entered on the' record. ^
At the close of the evidence, the court refused, on the request of plaintiffs, to give a declaration of law in these words:
“If the court"believes, from the evidence, that Gus
And gave, at the instance of defendants, the following declaration:
“Although the court, sitting as a jury, may find from the evidence that Gustavus Hufschmidt was, in his lifetime, a housekeeper, and head of a family, and that the plaintiff, Emilie Kaes, was his wife, and that, together with their children, they occupied and resided upon the premises described in the petition as being on the corner of St. Louis street and Adelaide avenue, as their house, and that while so occupying and residing upon said premises, the said Gustavus Hufschmidt diéd, yet, if the court shall further find, from the evidence, that about the twenty-fifth day of August, 1880, the plaintiff intermarried with one Philip Kaes, and immediately removed with her said husband to his homestead in St. Louis county, taking with her all hex household goods, beds, bedding, and furniture, and that she left said property and home of her former husband with no intention of returning thereto, and ever since she removed to the homestead of her second husband she has continued to reside thereon with him, and did, at the time of the commencement of this suit, and does now, reside with him on said new homestead, then she abandoned said homestead of her first husband, Gustavus Hufschmidt; and if the court shall further find
I. If • the declaration of law which the court gave was correct, it is quite unnecessary to examine any other points in this case, so far, at least, as a homestead right is concerned. It is quite certain that Mrs. Kaes acquired a new homestead at the domicile of her present husband. It is equally certain that she could not lawfully have two homesteads at the same time any more than she could lawfully have two husbands at the same time. And it is said that “ the intention to return, by which the homestead rights are preserved, must be formed at the time the removal occurs. It can have no influence whatever in restoring the right once lost by actual abandonment until executed by an actual resumption of occupancy.” And a subsequent unexecuted intention to resume possession would not have the effect to restore the right to hold the homestead exempt. If such right be once lost, and possession of the homestead be again resumed, such resumption of possession will only have the effect of giving origin to a new homestead right, bearing date from the new occupancy, and having no retroactive validity on the old right lost by abandonment, and possessing no force against the rights of third persons acquired in the interim between the loss of the old and the acquisition of the new right.
And it has been ruled, by a court very liberal in the preservation of homestead rights once acquired, that the removal of a family from the homestead constitutes a grima facie case of abandonment, and raises a pre
Summarizing the facts in this case, we find a homestead right acquired, and, after such acquisition, the death of the husband ; the remarriage of the wife; the almost immediate removal of herself, children, and household goods to the home of her present husband, in.
I find no authority in point, and this case is one of first impression as to the effect of the removal of a widow who has remarried, and, with her family and household goods, has removed, without intention of returning ; but, inasmuch as, in regard to a homestead, a widow, with a family, as in this case, cannot alienate the homestead; inasmuch as, between herself and her children, it is indivisible, and must so remain till the youngest child becomes of age ; inasmuch as such homestead is not subject to the laws relating to devises ; inasmuch as a widow, thus circumstanced, could not, if she would, by joining with her second husband, convey the homestead away; and inasmuch, in consequence of all these matters, she is, in so far as concerns her homestead, independent of her recently married husband, I can discover no sound reason why intention, or lack of intention, of removal should not count for as much where she remarries as where she remains unmarried. This must be so, or else it must be true that a widow, by remarrying, and thus creating her own disability, could remove from her old homestead, and, being incapable of forming any intention in regard to abandonment, could have that question indefinitely postponed, and she be at liberty, after a lapse of many years, to resume possession of her old homestead, regardless of whatsoever rights may meanwhile have intervened. It seems to me that the whole reason and policy of the law, in regard to
And, for like reasons as those already given, I do not see why Mrs. Kaes should not be as fully affected by the usual unfavorable presumptions attendant on removal and prolonged absence from her old homestead, and be equally bound to overcome such presumptions, in order to be successful, as would any other person whatsoever. Nor do I see why the effect of her acquisition of a new homestead, at the residence of her second husband, should not be as conclusive upon her as it would be in any other case ; for, certainly, the whole theory of the law is repugnant to the idea of ¿wo homesteads being in existence at the same time. Thomp. on Homesteads, sec. 279; Smith v. Bunn, supra. And that law apparently makes no distinction, and is no respecter of persons, in this regard, whether laboring under, or free from, the fetters of coverture. If Mrs. Kaes be not thus concluded, by her acquisition of a new homestead, then it would follow, leaving out of consideration the questions of intention and prolonged absence, that, though she has not lost the old, yet she has gained a new, homestead, and is now the fortunate possessor of homestead rights in duplicate, which is an impossible supposition. For these reasons, I am of the opinion that the trial court correctly refused the declaration of law asked by plaintiffs and correctly gave that asked by defendants.
As the law excepts the homestead out of the law of devises, it is not to be presumed that the husband, in this case, intended to go counter to express statutory provisions, and if he did, his will must yield to the will of the legislature. The very fact, standing alone, that the legislature has made no provision for election or renunciation regarding a homestead, is very strong evidence, indeed; but where this fact is coupled with the other, already noted, that the homestead is excepted out of the law of devises, they form, -as I think, a conclusive argument against the power of the husband, by his will, to put his wife to her election in regard to her homestead. Reasoning thus, I am of the opinion that the case of Davidson v. Davis, 86 Mo. 440, which lays down a rule contrary to the views here expressed, should not be longer followed, as the effect thereof is to nullify the statute. To
III. Touching the question of dower, it is settled adversely to the contention of plaintiffs, by the will, by the statute already cited, and by numerous decisions of
this court. Dougherty v. Barnes, 64 Mo. 159; Gant v. Henly, 64 Mo. 161.
The judgment should be affirmed.