Barlow v. Barlow

47 Kan. 676

• Court: Supreme Court of Kansas
• Decided: January 15, 1892
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

In 1868, the widow-Elizabeth A. Williams, and the widower Frederick P. Barlow, were married in Iowa, each having children by a former marriage, Elizabeth having four sons — David, Egbert, Charles, and Arthur. She at the time had considerable property, and with her children was drawing a pension of $16 per month. He had no property of any consequence. In 1869, he became nearly blind, and he continued so during the remainder of his life. They then agreed to come to Kansas and procure land, and that whatever property they might obtain should belong to her. In the early spring of 1870 they removed from Iowa to Kansas, and settled in Mitchell county, upon 160 acres of government land (the land now in controversy); and in April of that year a homestead entry thereof was made in the name of the husband, she furnishing all the money to pay all the costs and expenses. At the time of their removal she had $600 in cash, $310 in good promissory notes which were afterward paid, five horses, one wagon, and two sets of double harness; and she and the children were then drawing a pension of $14 per month. He had no property. Afterward improvements were made upon the land, and these were all made by her and her sons, they having come from Iowa to Kansas with Barlow and wife. His children remained in Iowa, and have never resided in Kansas, and are now the plaintiffs in this action. On March 13,1877, final proof was made regarding this homestead entry, and a proper receipt or certificate was given. The proof was also made and the receipt or certificate issued in the name of Barlow, Mrs. Barlow furnishing the money to pay all the costs and expenses. On March 14, 1877, Barlow delivered to her the certificate and told her again that the land was hers, and that he would execute a deed to her for it after the patent should be issued, and that they would build a house thereon and make other improvements thereon; that he wanted her' to furnish him a home on the land as long as he lived, and she said she would do it, and that she would furnish the money and labor to make the improvements. She continued to make improvements on the land up to the time of Barlow’s death, and afterward. On April 23, 1877, Barlow died intestate, and without having executed to Mrs. Barlow any deed for the land. She and her children were then drawing a pension of $12 per month. She continued to live upon the land and to make improvements thereon; and on September 1, 1885, more than eight years after Barlow’s death, his children and heirs brought this action for partition, claiming that they in the aggregate were entitled to one-half of the land. Mrs. Barlow has continuously resided upon the land ever since about April, 1870. She furnished all the money to procure the land and to make all the improvements thereon, and all this with the agreement and understanding between herself and her husband, before they left Iowa and afterward up to the time of his death, that the land should be hers; and the only question now presented is, whether upon all the facts of the case the land is hers or not.

We think this question must be answered in the affirmative. (Act relating to Trusts and Powers, § 8; Gen. Stat. of 1889, ¶ 7166; Newkirk v. Marshall, 35 Kas. 77; Franklin v. Colley, 10 id. 260; Edwards v. Fry, 9 id. 417; Twiss v. George, 33 Mich. 253; Littlefield v. Littlefield, 51 Wis. 23; Johnson v. Hubbell, 8 N. J. Eq. 332; Davison v. Davison, 10 id. 246; Rhodes v. Rhodes, 3 Sandf. Ch. 279.) Ever since the early spring of 1870, Mrs. Barlow has been in the actual possession of the property, with and in pursuance of the agreement and understanding between herself and husband that the property should be hers. All the money expended for the procurement of the property, and for putting improvements thereon, was hers; and although Mr. Barlow was the nominal head of the family, yet, because of his infirmities, she was the real and actual head thereof. The agreement between herself and husband was not to destroy their homestead interest in the property, or the homestead interest of either, or to deprive either of the occupancy thereof, but it was simply to transfer the title to the homestead from the nominal head to the real head of the family, and the husband was to remain on the homestead and occupy it as his home as long as he should live; and even with the title in his wife, she could not, under our homestead exemption laws, deprive him of his right to occupy it as his homestead as long as he should live.

In our opinion, all the equities in the case are in favor of Mrs. Barlow, and as the court below so held and gave her the property, its judgment will be affirmed.

All the Justices concurring.