Brewington v. Brewington

109 S.W. 723, 211 Mo. 48, 1908 Mo. LEXIS 89

• Court: Supreme Court of Missouri
• Decided: April 1, 1908
• Status: Published

Opinion

LAMM, J.

— W. P. Brewington died intestate seized of certain real estate in Madison county, Missouri, leaving a widow and two sets of heirs, some of them children by an earlier and some by a later marriage — some adults, others minors. The lands of decedent were in three separate and detached tracts, designated in the record as “Farm No. 1,” “Farm No. 2,” and “Farm No. 3,” and here (for convenience) called A, B and O, respectively.

In the latter part of 1895, on due proceedings in the probate court of Madison county, there was valued, severed and set out to the said widow and minor children, a homestead carved out of B and C, leaving remnants of both B and C in the corpus of the general estate. The widow died. Subsequently, in 1903, the adult heirs of W. P. Brewington brought suit against the minor heirs seeking a partition and sale of tracts A, B and C, including, the homestead. As presently seen, the court refused to partition the homestead of 160 acres. Thereat plaintiffs appeal.

Referring to said remnants, partition was also refused, as presently seen, because all parties agreed that such remnants (taken as detached from the homestead) were' valueless for the purposes of partition and ought not to be partitioned at this time, unless the homestead was also partitioned.

For our purposes, it will do to say that, among other allegations, the petition pleads the homestead proceedings in the probate court with a description of the lands included therein, continuing as follows:

“Plaintiffs further state that the dwelling house, out buildings and the land in connection therewith as above set out to the widow and minor children of "W. P. Brewington, deceased, exceed the sum of fifteen hundred dollars in value as mentioned in section 3616 of the Revised Statutes of 1899 of Missouri, and a severance of such homestead for the minor children, the widow being dead, would greatly depreciate the value of the residue of the premises from which-said homestead is set off and be of great inconvenience to the parties interested in the homestead and the residue of said premises and render the residue of said premises, if partitioned and sold without the homestead, valueless. ’ ’

In substance, so far as material, defendants answered denying- the right to partition the homestead until the minor defendants all attained their majority. These answers impliedly admit an increase in the value of the homestead since it was severed and set out, but allege it contained only 160 acres and did not exceed $1,500 in value at that time.

In the judgment, nisi, the homestead proceedings are set forth with a description of .the homestead in metes and'bounds. A partition of tract A is then adjudged and it is ordered sold. As to the homestead and the remnants of B and C, the judgment runs as follows:

1 ‘ The court further finds and decrees that the foregoing described homestead so set out to the widow and minor children is not subject to partition in this action, and the court further finds that the remaining portion of farms Nos. 2 and 3 not embraced in the aforesaid described homestead cannot be divided in kind or sold without great prejudice to the interests of the heirs of said W. P. Brewington, and it is conceded and admitted by the plaintiffs and defendants that a sale or division of said remaining portion of farms Nos. 2 and 3 would be detrimental and prejudicial to the interests of said heirs and recommend that said partition be not made.”

At the trial evidence went in from plaintiffs tending to show that W. P. Brewington died seized of tracts A, B and C. That each was a farm separate and apart from the other. That the homestead was carved from tracts B and 0, leaving out a parcel of each. That the severance of these parcels from the homestead would greatly depreciate them,, and be of such inconvenience to the parties in interest as to render them valueless. Plaintiffs also introduced evidence tending to show that the homestead cannot be occupied in severalty without great inconvenience to the parties interested in such homestead and in such residue. That the homestead when set off was worth $2,000 and is now worth $3,000. That the minor defendants are two boys aged respectively twenty and nineteen years and two girls aged respectively seventeen and fifteen; and that neither tract A, B or O was susceptible of division in kind equitably.

The bill of exceptions shows further, as follows:

“The defendants to sustain the issues on their part offered evidence tending to show that the homestead as set off was worth but $1,500 at the time and is now worth about $2,500, also the ages of minors as stated, and other evidence as to ownership and interest was the same as plaintiffs ’ and that the homestead could not be set out and the remainder of the farm sold without great prejudice to all parties in interest.”

It is asserted in respondents’ brief, and not denied in appellants’, that the judgment of partition, as to tract A, has been fully executed — i. e., the land has been sold, a deed made and the proceeds divided as directed by the court in its findings. No complaint, here, is made of the refusal to partition the remnants of tracts B and C. Contra, the case proceeds on appeal on the assumption that the heirs are in accord in not wanting these remnants partitioned until such time as the homestead be also partitioned. Indeed, as pointed out, so much of the judgment as refused partition of these remnants was entered by consent, provided the refusal to partition the homestead itself was right.

It appears, then, that the sole question presented here is the right to partition a homestead, once severed and set out by proper proceedings in a court of competent jurisdiction to a widow and minor children, on the death of the widow, but before the minors attain their majority.

On the foregoing record, can the judgment stand 1 We think so; because:

I. The nature of a homestead right during the life of the head of a family owning the fee has been troublesome to define with precision, and appellate courts in Missouri, recognizing it as an anxious matter, have been chary and cautious in undertaking to define it. Hence, what has been said in that way may lack a tone of certainty and finality. The logic of the latest utterance may be said to be that the homestead interest (whatever it is) in a live debtor is not such an estate, as, when put in jeopardy by the levy of an execution, the title to real estate is involved. It has, accordingly, been held that an appeal here does not lie (i. e., that this court has no jurisdiction in an appeal) from an order sustaining or overruling a motion to quash the levy of an .execution upon a homestead because of its being exempt. [Snodgrass v. Copple, 203 Mo. 480.]

I take it the homestead right during the lifetime of the owner of the fee may, by way of analogy, at least, be defined as a privilege, an exemption from levy and sale under execution. That right arises under the peculiar wording of sections 3616 and 3617, Revised Statutes 1899; but, when we come to section 3620 in the Homestead Act, the lawmaker used language importing quite another thing and courts have uniformly put a different construction on the character and quality of a. homestead estate descending to the widow and minor children on the death of the owner. Attending to section 3620, it enacts that if the housekeeper or head of a family die, leaving a widow or any minor children, his homestead “shall pass to and vest in such widow or children, or if there be both, to such widow and children, and shall continue for their benefit . . ., until the youngest child shall attain its legal majority, and until the death of such widow; that is to say, the children shall have the joint right of occupation with the widow until they shall arrive respectively at their majority, and the widow shall have the right to occupy such homestead' during her life or widowhood, and upon her death or remarriage it shall pass to the heirs of the husband; and the probate court having jurisdiction of the estate of the deceased housekeeper, or head of a family, shall, when necessary, appoint three commissioners to set out such homestead to the person or persons entitled thereto.”

In construing that section, it has been uniformly and .consistently held that the homestead right .therein directed to pass and vest is not a mere privilege or exemption. To the contrary, the language employed clearly imports something more than a privilege or exemption, apt words are used importing an estate, viz.: that a life estate (determinable, as the statute now stands, on the remarriage of the widow) vests, eó instmti, by virtue of that section on the death of the head of a family, in his widow; and an estate for years (determinable as to each minor when he reached his legal majority) vests in his minor children. [Elstroth v. Young, 83 Mo. App. l. c. 258; Hufschmidt v. Gross, 112 Mo. l. c. 659, et seq.; Wilson v. Johnson, 160 Mo. l. c. 515; West v. McMullen, 112 Mo. l. c. 411, and cases cited.] So much must he held settled law.

In further developing the idea in mind, we may profitably attend to Macke v. Byrd, 131 Mo. 682. That case holds that in Missouri a homestead during the life of the head of the family may be moved about. It was said it.could not be. fastened to one spot by a judgment lien, which would he the consequence of permitting it to be sold on execution, subject to the homestead right. A homestead had been appraised and set out under prior executions in favor of one Houck, and thereafter it was sought to subject the homestead to a sale under Macke’s execution. In such condition of things this court held that the homestead, fixed and defined by the appraisers, the sheriff and the court under the Houck execution, held good “until some creditor should by proper steps attack the former allotment of the homestead as to quantity or value.” It was pointed out that this might be done under certain sections of the statute, but, until that course was taken by some one, the debtor was entitled to the full enjoyment of all his rights in and to the homestead property, including the power of disposal, of which he had taken advantage. But, before concluding the case, pains were taken to hint at the distinction between the homestead right in a live execution debtor and the homestead estate vesting in a widow and minor children at the housekeeper’s death-. To that end, Barclay, J., speaking to the point, said: ‘ ‘ The Missouri law on this subject is, unfortunately, not a model of clearness of purpose in some of its features, though its general design is plain enough. It prescribes rules of conduct some of which are applicable to the homestead owner and to his obligations and rights, during his lifetime, and others of which govern the rights of his widow and- children, in or to the homestead, after his death. It is scarcely necessary to say (though we do so out of abundant caution) that our comments are intended to apply only to a case involving the interests and rights of the homesteader, his vendees and his- -judgment creditors, but not of his widow or children, after his death. The case in hand does not involve an' inquiry into the nature of the estate of the widow or children of the homesteader, and our rulings should be understood as applying strictly to the facts now in judgment. ’ ’

The Macke case, then, but sharply points the distinction heretofore discussed between a homestead right in a live execution debtor, and a homestead estate cast by his death on his widow and infant heirs.

To sum up: On this branch of the case our conclusion is that, as near as language can interpret the intention in the legislative mind, it was to provide the shelter of a privilege or right of exemption in the housekeeper from execution levy and sale of his homestead right — this during his life. Our conclusion is further that, if he dies, section 3620 of the Homestead Act is operative to create, pass to . and vest in his widow and minor children an estate for life and years respectively, and this (necessarily) with the incidents of such estates.

II. Assuming the conclusion reached in paragraph I to be sound law, then, as pointed out in the Macke ease, supra, the incidents of the homestead right during the life of the housekeeper, or head of a family, and the incidents of the life estate and estate for years, vested in the widow and minor children on his death, might naturally be expected to differ .in essential features.

Accordingly, in Beckner v. Rule, 91 Mo. 62, it was held that during the life of a debtor he takes and holds his homestead subject to fluctuations in value. That is, when it has been once appraised and set out to him on levy of an execution if it afterwards grow in value, the excess may be subjected by a new appraisement to execution levy and sale. On the other hand, if it depreciate in value he may add to it and claim a revaluation himself. Obviously, the holding in the Beckner case was not directed to the character of estate vested in a widow and minor children on the death of the head of a family. It, on principle, would not apply to a homestead so vested on the death of its owner. As long as the homestead was a mere immunity, a privilege or right of exemption from seizure and sale under execution, it might well be allowed •elasticity — the quality of shrinking or swelling with ■the efflux of time to be adjusted as occasion demanded —although the Missouri doctrine on that score has been questioned and not followed elsewhere by some courts of last resort. [Gowdy v. Johnson, 104 Ky. 648; Gully v. Cole, 96 N. C. 447; Hardy v. Lane, 6 Lea (Tenn.) 379; McCaskill v. McKinnon, 125 N. C. 179.]

The general rule seems to be that a revaluation and a new setting off of a homestead, even to the execution debtor in his life time, will not be allowed in the absence of a plain statutory proyision to that effect. [15 Am. and Eng. Ency. Law (2 Ed.), 607.] The eases cited from Kentucky, Tennessee and North ■Carolina recognize there might be a revaluation of a homestead right claimed by an execution debtor where the original valuation was the result of a fraud, or where some extraordinary incidents had intervened loudly appealing to equitable doctrines. The Missouri •doctrine announced in the Beckner case may be referred somewhat to statutory provisions presently to be considered and which, as presently seen, relate (not so much to an interest in lands arising to the dignity of an estate vested in a widow and minor •children, but chiefly) to the mere right or privilege ■of exemption from execution levy and sale. There is a case in California [In the matter of the Estate of Matthew Delaney, 37 Cal. 176], taking color from ■peculiar statutory provisions under exposition and singular to that State, which holds that after the death ■of the housekeeper the homestead estate is subject to revaluation as of course;. but that case,. because of peculiar statutory provisions expounded, is not instructive on the question made in the case at bar.

Certainly it could not with propriety be held that ra vested life estate or a vested estate for years was ordinarily held subject to the incidents of shrinking or swelling from time to time as the case might be. When an' estate is vested for life or years it is fixed for the prescribed term. Its owners are seized for that term. [Black’s L. Dict., tit. “Vest.”]

Now, a proceeding in a court of competent jurisdiction under the statute to have a homestead estate appraised and set out to a widow and minor children is in the nature of a proceeding in rem — it binds the whole world and affects permanently the status of the estate.

It could not be denied that if such estate- could be recarved and sliced up from year to year as it increased in value, then, by the same token, it could be enlarged from year to year by adding to it other parcels of the general estate in case its value decreases. [Kenley v. Bryan, 110 Ill. 652.] Such a condition of things would breed uncertainty, instability and consequent confusion. In the nature of things it could not but injuriously affect those very persons the law holds in tender regard because of their inability to protect themselves, to-wit, the widow and the fatherless; and, therefore, it seems sensible to conclude, as we do conclude, that, in the absence of fraud in the proceeding (as here) or in the absence of a plain statutory provision allowing a revaluation, questions of value and extent of land are settled once for all when their homestead is regularly set out and adjudged.

This; conclusion is fortified by the proposition that homestead laws are not in derogation of the common law and are, therefore, not to be strictly construed. In Blandy v. Asher, 72 Mo. l. c. 28, the doctrine of Thompson on Homesteads, sections 1; 2, 3 and 4, in that behalf was approved. “Homestead laws,” says Sherwood, J., in the Blandy case, “being of a liberal and beneficent nature, being designed to prevent pauperism and vagrancy and their consequent temptations to crime, should not be dwarfed, and their evident purpose thwarted by a narrow and illiberal construction.”

In this connection, Hazelrigg, J., in Gowdy v. Johnson, supra, well said, arguendo: “The bad effect on the homesteader of rendering his habitation unstable, and increasing his anxiety for the continued shelter of his family, is not to be overlooked. While it is said that the State by such statutes is conferring merely a favor or privilege on the debtor, it is to be remembered that the State gets value received. It comes to be supported in time by a citizenship interested in the State and tied to her soil, of independent home-owners, and not of transient and uncertain tenants. It was aptly said by Mr. Benton in the Senate of the United States that ‘tenantry is unfavorable to freedom. It lays the foundation for separate orders in society, annihilates the love of country, and weakens the spirit of independence. The tenant has in fact no country, no hearth, no domestic altar, no household god. The freeholder, on the contrary, is the natural supporter of a free government; and it should be the policy of republics to multiply their freeholders, as it is the policy of monarchies to multiply their tenants. ’ As already stated, we have heretofore decided, in effect, that once a homesteader always a homesteader. And we think [it] is equally clear within certain limitations as to occupancy and possible exceptions to be noticed, once a homestead always a homestead.”

The foregoing forensic eloquence is replete with wisdom and patriotism. No good reason can be seen why.it does not point a public policy to be subserved by courts in the administration of justice. In the Kentucky case it was applied to the mere homestead interest of ah execution debtor. . Possibly, it could not be so applied in Missouri, but that is no reason why it does not closely fit and apply to the estate for years and for life vested by our statutes in his minor children arid widow when the guiding and steadying hand of the head of the family is paralyzed by death.

III. Are there any statutory provisions which command the revaluation and readmeasurement of a homestead and permit its partition when once set out?' The learned counsel for appellant puts Ms finger on section 3625, Revised Statutes 1899, and argues' that we should construe that section to mean that a homestead once set out to the widow and minor children in a court of competent jurisdiction should be revalued and, if found to be increased in value, then it should be partitioned if it cannot be occupied in severalty without great inconvenience to the parties interested in such homestead or in such residue. There being testimony in the case that the homestead, presumably by the natural rise in the value of land, has become worth between $2,500 and $3,000 and there being evidence-that the remnants of tracts B and O are of little or-no value separate from the homestead, it is argued that the conditions referred to in that section exist, ergo, the homestead should be reduced, commuted into-cash and partition go- for the whole of tracts B and C including the homestead itself. But we cannot allow the argument of counsel as sound; because section 3625 has been brought down as a live law from the first Homestead Act. It reads now as it did when it was section 10 of chapter 111 in the General Statutes of 1865, p'. 451. It refers now to section 3616', the first section of the present Homestead Act, as it referred then to section 1, the first section of the original Homestead Act. Under section 5 of the original act (now,, as amended, section 3620 and hereinbefore under exposition) the widow and minor children were vested with an estate. The original act having been borrowed from Vermont, it was held in Stouten v. Wood, 57 Mo. 380, that we borrowed the law together with the construction theretofore put upon it by the Vermont, courts, and, therefore, the -widow took an absolute title in fee, subject to the interest of the children until they attain their majority, as held by said Vermont courts. If, now, section 10 of the old act be construed in connection with section 5, which gave the widow title in fee, we would, under counsel’s theory, have the absurd result of a title in fee once vested in the widow by a valuation and admeasurement of the homestead, divested out of her by piecemeal as the land grew in value — a theory that would destroy or impair her .right of alienation. Such an irrational result never could have been in the contemplation of the Legislature — stability, fixity and alienability being of the essence of estates in fee. To the contrary, section 10 of the old act, now section 3625, Revised Statutes 1899, contemplates one of two things, viz.: either a condition of things pertaining to the homestead right of an execution debtor, or to a homestead right of a. widow and minor children which, because of given conditions, cannot be valued, severed and set out to them. It cannot be said to relate to the estate of the widow and minor children after the homestead has once been valued, severed and set out to them. If, as between the debtor and creditor the homestead cannot be severed without great prejudice to all concerned, or if the homestead estate of the widow and minor children cannot be severed and set out without such inconvenience and loss, that statute may have some bearing and be called into play.

It results that section 3625 does not give the remedy sought by plaintiffs in this case.

Counsel argue that Beckner v. McLinn, 107 Mo. 277, is authority for his position, but that case is not on all-fours with this. That case passed off on three propositions: First, one relating to the sufficiency of an order of publication; next, one relating to the general doctrine of res adjudicaba; and, next, one relating to the right of the heirs to .partition the estate when the homestead is part of an estate held in common. That a homestead may be set out by a partition proceeding, no one questions; but in this case the homestead has been set out and the question is whether, having been set out, it may be partitioned among the heirs prior to the youngest attaining its majority ?

That a homestead, as such, is not subject to partition results from the inherent character of the estate and the purpose it subserves under the policy of our laws. [Rhorer v. Brockhage, 86 Mo. 544; Simpson v. Scroggins, 182 Mo. l. c. 571; id., p. 574; Quail v. Lomas, 200 Mo. l. c. 687.]

The homestead having been once duly valued and admeasured by proceedings in a court of competent jurisdiction, is not subject to- a new adjustment under the pleadings and proof in the case at bar, nor is it subject to partition during the minority of any of ~W. P. Brewington’s children. Therefore, the judgment must be affirmed. It is so ordered.

All concur.