80 Mo. 363 | Mo. | 1883
This is a suit in ejectment, by plaintiffs against the defendant, to recover possession of the south half of the southwest quarter section 14, township 65, range 37, containing eighty acres; and also a certain part of lot 4 of the northwest fractional quarter of section 20, township 65, range 37. The defendant, after denying specifically the allegations in the petition, says :
Defendant, for further answer and defense, states that on or about the-day of January, 1874, David Roberts died intestate; that prior to and at the time of his death, he was the husband of one Elizabeth Roberts, and was a housekeeper and the head of a family, and seized in fee simple
The plaintiffs’ reply denied that the land descended to and vested in Elizabeth Roberts and her heirsffn fee simple; denied that she sold or intended to sell to defendant, anything more than her dower right; that Ware intending to cheat and defraud her, made false representations to induce ]ier to sell and give possession of the premises, and denied
The following admissions were made on the trial: “ That David Roberts died, seized in fee simple of the south half of the southwest quarter of section 14, also ten acres being part of lot 4, of the southwest fractional quarter of section 20, all in township 65, range 3-7, in Nodaway county, Missouri; that at the time of his death, in January, 1874, he occupied said land as his homestead; that plaintiffs, David Roberts and Mary E. Roberts, are minor children of said David Roberts deceased, the one aged five and the other seven years, and are living with their mother; that Elizabeth Roberts, now Shirley, is the mother of said children, and was the widow of said David Roberts, deceased, and so remained until she married Lemuel Shirley; that said Lemuel Shirley and Elizabeth Shirley jointly executed a quit-claim deed for the land above described, for the consideration of $200, mentioned in the answer.”
The other evidence was nearly altogether as to the value of the land, and as to the alleged fraud of the defendant in procuring the deed to the land in controversy. But as those questions are not material in this case, that evidence is not further referred to. The court below found for the plaintiffs, and the defendant, Ware, brings the case here on appeal.
The decision of this case depends on the construction of section 5 of the Homestead Law then in force. 1 Wag. Stat., p. 698. This section was passed upon as far back as 57 Mo. 380, in the case of Skouten v. Wood, where it was held that the widow and children took the same estate which was in the father at the time of his death; that at the death of the widow it would descend to her heirs subject to the homestead right of the children of the father during their minority. Fruend v. McCall, 73 Mo. 343; French v. Stratton, 79 Mo. 560. In this case, under the Homestead Law then in force, the widow and children took this land as a homestead, The widow in fee subject to the
The judgment of the circuit court is affirmed.