Brinkerhoff v. Everett

38 Ill. 263

• Court: Illinois Supreme Court
• Decided: April 15, 1865
• Status: Published

Opinion

Mr. Justice Lawrence

delivered the opinion of the Court:

One Jeremiah Everett died, July 5th, 1860, there being at the time certain judgments against him belonging to a part of the plaintiffs in error, and rendered in a court of record. He had been occupying a homestead with four minor children, of whom three have not yet attained their majority. On his death the minors being motherless, were placed by their guardian in different families, one of them residing with him, and the homestead was rented for their benefit. About three years after the death of their father, executions were sued out on the judgments and levied on the homestead, and it was sold. The heirs filed their bill against the purchaser and judgment creditors, to set the sale aside, and the Court so ordered.

The point presented by this case has already been decided by this court in Walters v. The People, 21 Ill. 178, and from that decision we have no disposition to depart. It was there held that the “ occupancy ” required by the statute might be by a tenant for the benefit of the widow and minor children, and that their interests would be thus protected as well as lier’s. It is manifest, that if the statute were to be construed as requiring a personal occupancy, it would, in the case of all young orphan children, and indeed generally in regard to infants, be rendered wholly nugatory. How can girls or young children who, having lost both their parents, are generally taken to the homes of their guardians, or kindred, be expected to occupy a farm in person ? In order to. give the statute effect, it must be construed as requiring only such occupancy as the condition and best interests of the parties op whom the homestead right has devolved, may require. The Legislature can not be supposed, while professing to legislate for the benefit of infants, to have intended to say to a young child— you shall have the proceeds of this farm during your minority if you occupy it in person, but you shall not be placed with your kindred, and let the farm be occupied by another in your name and for your use. This would have been mockery. We have no doubt that, at least in this class of cases, the occupancy may be by a tenant. This is not a case of abandonment, as suggested by the counsel for the plaintiffs in error. Even if infants are capable of abandonment, the proof in this case shows the property to have been rented by the guardian for the benefit of the minors, from which certainly no intent to abandon can be inferred.

Judgment affirmed.