78 N.E.2d 224 | Ill. | 1948
This case was started in the municipal court of Chicago under the Forcible Entry and Detainer Act. A judgment was entered in favor of defendant. Plaintiff has appealed directly to this court on the assumption that a freehold was involved.
The facts are not in dispute. Formerly William Watt owned the premises in question and conveyed them to his two sons, John and Joseph, in joint tenancy. The real estate was improved with a dwelling converted into a two-family apartment. John and his family, consisting of his wife and daughter, moved into the second-story apartment. They occupied it as their home until he died, and thereafter the widow and child continued to live there. In August, 1947, Joseph Watt, the surviving joint tenant, started this action to recover possession from Hazel Watt, who is the widow of John Watt. The property described in the complaint was limited to the "four room apartment on the second floor." Defendant answered, setting up the conveyance to the two brothers in joint tenancy at John's death, and that she and the child had remained in possession of the apartment after his death. She claimed that by reason thereof she was entitled to a homestead estate in the four-room apartment. Defendant made no claim in the trial court, and makes none on this appeal, that she has any interest in the property other than the right to an estate of homestead in the four-room apartment.
Defendant's claim that she has an estate of homestead *37
is without merit. We will not discuss the question as to whether John Watt had an estate of homestead in the property described in the petition, but for purposes here will assume that he had a homestead estate. An estate of homestead cannot be more extensive than the interest in the land to which it attaches. (Hertz v.Buchmann,
Under the principles announced in the foregoing cases, it is obvious that on the death of John Watt title passed to the surviving joint tenant and nothing remained to support any estate of homestead which the said John Watt might have had in the property. There could be no application of section 2 of the Homestead Exemption Act for the benefit of the defendant as the widow of John Watt. (Hoeffner v. Hoeffner,
In view of the foregoing conclusion, the judgment of the municipal court must be reversed.
Judgment reversed. *38