| Mo. | Oct 15, 1885
— John Brockhage, the father of defendant, died May 17, 1875, occupying as a homestead, and seized of the premises in controversy, leaving his widow and this defendant, a minor son, as his only heirs. After his death, the widow elected to take a child’s part of his estate, in lieu of dower. Prior to 1878, she intermarried with one Alvord, and, on the twenty-eighth day •of August, 1878, she and her husband mortgaged her interest in said property, and plaintiff claims under that mortgage. In November, 1879, Mrs. Alvord leased the homestead to another, and temporarily resided on other property which belonged to the estate of her deceased husband. The premises in question do not exceed in area, or value, the limits prescribed for a homestead. 'The object of this proceeding is to have partition of said’ premises betwixt the plaintiff and defendant. Defendant had a judgment in the circuit court, which was affirmed by the St. Louis court of appeals, and plaintiff has appealed to this court.
Whether the widow had an estate in the premises which she could convey to another, or what, if any, interest her grantee would take under a deed from her, purporting to convey a fee-simple title to an undivided half thereof, we deem it unnecessary to decide, being of the opinion that, even if, under her election, she was •entitled to an undivided half of the premises in fee, there can be no partition thereof, until the defendant shall have attained his majority. The statute, section 2693, provides that the homestead shall vest in the widow and children, and shall continue for their benefit, until the youngest child shall have attained its legal majority. It is for their joint benefit, and there is nothing in the statute which confers upon her or warrants a fair inference that the widow has the- right to dispose of it,
It is contended that Brockhage owing no debts when he died, there can be no statutory homestead. The contrary was held in Freund v. McCall, 73 Mo. 346 ; but-because, under our original homestead act, the widow took a fee-simple estate in the homestead, and not under the present law, which, it is claimed; is only an act exempting a homestead from the debts of the decedent, it is insisted that where there are no debts there can be no homestead. There was no material change effected by the act of 1875, bearing upon this question, except as to-the estate of the widow in the homestead. That was, equally with the present law, an exemption act. The first paragraph of the first section of that act was precisely the same as that of the first section of the present-law. The second section of that act, as does the second of the act now in force, prescribes what shall be, done when an execution is levied. The subsequent sections of the two acts are not materially different from each other, and we see no reason for holding, under the present law, that there can be no statutory homestead, when the decedent left no debts, which did not bear with equal force on that question under the former law.
Nor do we think that the homestead right of the children can be, in any manner, affected by its abandonment by the mother. They may accompany her to another home, but their right in the old homestead continues.
The judgment is affirmed.