Richter v. Bohnsack

144 Mo. 516 | Mo. | 1898

Gantt, P. J.

This is an action of ejectment for a house and lot in the city of Cape Girardeau. Plaintiffs are the devisees of Mrs. Louisa Bohnsaek, formerly Mrs. Westerholt, deceased, and the defendant her late husband. At the time of the death of Mrs. Bohnsaek, she and the defendant resided on the lot as their homestead. No children were born of the marriage of Mr. and Mrs. Bohnsaek. The husband was a widower, with one minor son and an unmarried daughter at the time of his marriage to Mrs. Westerholt. Whether these children lived with defendant at the time of the death of Mrs. Bohnsaek does not appear either in his answer or the evidence, but if they did that fact will not affect the legal phase of the case. By her last will duly probated Mrs. Bohnsaek gave the lot to her sister, Mrs. Schwettman, and her brother, J. H. Richter, and $100 to her husband in full of all interest in her estate, and if he asserted any claim by way o'f dower or curtesy he should forfeit the $100. The sole and only question mooted by defendant is his right of homestead in the lot in question during the remainder of his life. It will be observed that, as no child was born of the marriage capable of inheriting, defendant was'not entitled to curtesy, and as Mrs. Bohnsaek died in December, 1894, the act of the General Assembly, approved March 2, 1895 (entitling a widower whose wife had died without any children, or other descendants in being capable of inheriting the one half of the real and personal estate belonging to her at her death absolutely, subject to< debts), does not affect the question. Can the husband retain .possession of the homestead against the devisees of his wife? We answer he can not. The right to a homestead depends in this State entirely upon statutory provisions. The statutes of this State nowhere give a surviving husband a homestead in the lands of his deceased wife. The case of Kendall v. Powers, 96 Mo. 142, is not authority for the position of appellant. In that case when the homestead right accrued, Cummins was the owner of the lots and was married. His family consisted of his wife and six children. He then conveyed the land through a third party to his wife, and continued to reside on it. His wife died and he became vested of a life estate by the curtesy. It was sought to subject his curtesy to a sale under execution, but this court decided that being the head of the family and occupying the lot in which he had a curtesy he could exempt it as by homestead. No doubt whatever can exist as to the correctness of that decision, but in that case his homestead attached to his own interest in the land, not tp his wife’s. When this court said in that case that the husband as the head of the family-may have a homestead in a life estate, it asserted an undeniable proposition, and when it said he might have a homestead in property the legal title to which was in the wife, it also announced a sound proposition; the authority referred to being Thompson on Homesteads, section 220, in which the author discusses cases which hold that if the husband and wife occupy the homestead, and the legal title is in the wife, and the equitable interest is in the husband, he can claim his exemption therein. But here there is no curtesy, and no legal, or equitable, or marital interest of any kind in the husband in this land. The statute does not give him a homestead, and the circuit court correctly ruled against his contention.

Judgment affirmed.

Sherwood and Burgess, JJ., concur.