Cole v. Coons

178 P.2d 997, 162 Kan. 624, 1947 Kan. LEXIS 217

• Court: Supreme Court of Kansas
• Decided: April 5, 1947
• Docket: No. 36,561
• Status: Published

Opinions

The opinion of the court was delivered by

Burch, J.:

The original opinion in this case was filed as of April 6, 1946, and appears in 161 Kan. 332, 167 P. 2d 295. A motion for a rehearing was allowed, additional briefs were filed and the case was reargued. The argument which convinced this court that the motion for a rehearing should be allowed was to the effect that the court followed the case of Jehu v. Jehu, 110 Kan. 210, 203 Pac. 712, without giving reported consideration to the wording of a relatively new statute in the present probate code. Such statute is G. S. 1945 Supp., 59-402, which reads:

“The homestead shall not be subject to forced partition unless the surviving spouse remarries, nor until all the children arrive at the age of majority.” (Emphasis supplied.)

The corresponding statute and source of prior law which was in effect before its repeal and when Jehu v. Jehu, supra, was decided, is now shown as G. S. 1935, 22-105. It reads:

“If the intestate left a widow and children, and the widow again marry, or when all of said children arrive at the age of majority, said homestead shall be divided, one half in value to the widow and the other one. half to the children.” (Emphasis supplied.)

Because the present statute, G. S. 1945 Supp., 59-402, was not cited in the original opinion the impression may prevail that its significance was overlooked. In justice to counsel for the appellant, however, it should be said that such statute was called to our attention and its force emphasized in appellánt’s original brief. In the proceedings on rehearing our attention has been called again and again to the difference in the wording of the former statute and the wording of the present statute. The prior statute obviously provided that when a widow and children survive an intestate the homestead could be the subject of partition when and if the widow again married or when all of the children arrived at the age of majority. The present statute reading, “The homestead shall not be subject to forced partition unless the surviving spouse remarries nor until all the children arrive at the age of majority,” may have a very different meaning. Counsel for the appellant emphatically contend that it was the deliberate intention of the legislature when it repealed G. S. 1935, 22-105, in connection with the passage of ■G. S. 1945 Supp., 59-402, to change the meaning in such manner that thereafter the surviving spouse with adult children would continue to have the same rights as a spouse without children or with minor children unless the spouse remarried. In support of such contention they cite Bartlett’s Kansas Probate Law and Practice, sec. 195, p. 187, et seq. The cited text clearly supports the contention. Also it is contended that the word “nor” as distinguished from “or” is a negative connective or particle introducing a second negative of a negative proposition. This court does not necessarily disagree with such contentions and insofar as the syllabus to the original decision and the corresponding part of the opinion conflict with such contentions the same may be regarded as being set aside as the court does not intend that the original opinion shall be construed as deciding, by implication or otherwise, that the two statutes are identical in meaning. The question before the court, however, is whether the present statute has any application or is controlling in the instant controversy.

Before giving consideration to the above-stated question we note further that the original opinion, near the close thereof, reads as follows: “Counsel for appellees call our attention to the fact that the appellant failed to have a homestead interest in his behalf established in the probate proceedings. Such a defense was not alleged in the reply filed by the appellees and was not passed upon by the trial court.” In the supplemental briefs and abstracts filed in connection with the rehearing it is established that counsel for appellees asked leave to amend their reply by setting forth, in substance, that the appellant was estopped from asserting or had waived the right to assert .any claim to a right of homestead occupancy by reason of his failure to file a petition in the probate court claiming a homestead interest in the property as he might have done under the statute that is now G. S. 1945 Supp.;’59-2235. Counsel for ■ the appellant concede that he did not file such a petition. The record discloses further that in the instant case the trial court clearly took the position that an owner of' an undivided interest cannot establish a homestead right as against a cotenant' and that a surviving spouse cannot assert a homestead interest in property that was subject to partition by joint tenants before the deceased spouse died. For such reason the written opinion filed by the court concludes as follows: “In view of the above it is unnecessary to decide the question raised by the plaintiffs that the defendant is estopped from now claiming a homestead right when it was not asserted and adjudicated in the probate court.” The reasoning of the trial court seems logical. If no homestead interest could be asserted as against cotenants in this case, then such a nonexisting interest could not be waived or otherwise lost by failure to assert the same in any court because there was nothing to assert. Consequently, if the trial court was correct as to'the basis for its ruling, then this court also does not reach for decision the question whether a waiver of or an estoppel to assert a homestead claim develops in the present case.

For the purpose of clarity, perhaps it is prudent to review again some of the pertinent facts. P. A. Cole and his wife, Bessie D. Cole, purchased the land in question in 1915, taking title in such a way that each had an undivided half interest therein. They were the parents of the appellees. P. A. Cole died intestate in 1922. His estate was not administered and it is conceded that one-half of his estate passed to his widow, Bessie D. Cole, and the other one-half to their three children. This left the title to the land in Bessie D. Cole and her children as tenants in common, she owning an undivided three-fourths interest and the children collectively owning a one-fourth interest, each of them owning a one-twelfth interest. In 1932 Bessie D. Cole married Joe Coons, the appellant, and shortly thereafter they moved upon the land and made it their home. On ' July 19, 1942, Bessie D. Cole Coons died intestate and her estate was duly probated in Reno County, Kansas. The administration was closed on September 7, 1943. Prior to her death her children, who are the appellees in the present case, collectively, as tenants in common with their mother, owned undivided interests in and to the property by reason of the children having inherited from their father one-half of his original interest in and to the property. Obviously, when their mother died the appellees also collectively acquired by descent from their mother one-half of her three-fourths interest in the property, with the result that the appellees at the time the action.was brought were the owners of 15/24 of the property and the appellant was the owner of the remaining 9/24. A significant fact to be noted is that the appellees were collectively the owners as cotenants of 6/24 of the property before the death of their mother occurred. It should be noted also that they had become adults and that their mother had remarried long before the action was brought. The appellant admits that the appellees owned the respective interests irt the property as cotenants, and the other circumstances herein set forth but contends that upon the death of Bessie D. Cole Coons he became entitled not only to have title established in him as to his 9/24 interest in the property but that he was entitled also to a homestead right of occupancy in all of the interest owned by Bessie D. Cole Coons prior to her death. The appellees contend that the appellant was not entitled to any homestead right of occupancy because the property was owned in co-tenancy prior to the death of Bessie D. Cole Coons.

In considering the question presented, it is well to bear in mind at the outset, that the statute, G. S. 1945 Supp., 59-402, supra, does not create a homestead. It only provides that partition of a homestead may be had when and if it and certain other prescribed conditions exist. It presupposes that a homestead right exists. Its wording does not permit any other construction. As hereinbefore set forth it reads: “The homestead shall not be subject to forced partition unless the surviving spouse remarries, nor until all the children arrive at the age of majority.” It follows, therefore,'that if no right of homestead occupancy existed as between the cotenants that the statute has no application and is not controlling.

The original opinion, in addition to citing Jehu v. Jehu, supra, cites the case of Banner v. Welch, 115 Kan. 868, 225 Pac. 98, and quotes the following therefrom:

“ ‘Appellants contend that this property is their homestead and that plaintiff cannot disturb or destroy their homestead interest in the property. The rule is well settled that when two or more parties buy real property, and become owners thereof as tenants in common, one of them cannot, as against his cotenant, establish a homestead upon the whole. All he can d,o is to establish a homestead as to creditors upon his separable interest or title. (National Bank v. Kofflin, 1 Kan. App. 599; Tarrant v. Swain, 15 Kan. 146; Oliver v. Sample, 72 Kan. 582, 84 Pac. 138; 15 A. & E. Enc. of L., 2d ed., 568, 570; 29 C. J. 849; 13 R. C. L. 573; Livasy v. State Bk. of Redfield, 185 Iowa 442; Sieg v. Greene, 225 Fed. 955; Peets v. Wright, 117 S. C. 409; Baker v. Grayson, 86 Okla. 159; Leach v. Leach, 223 S. W. [Tex. Civ. App.] 287.)”’ (Emphasis supplied.) (p. 336.)

The original opinion also clearly develops that we do not have before us for consideration a case wherein homestead rights are being asserted as against creditors, heirs or devisees. The instant case involves only the right to assert homestead interests as against co-tenants. In addition to the cases cited in the original opinion, see the case of Hazelbaker v. Reber, 123 Kan. 131, 254 Pac. 407, from page 136 of which the following is quoted:

“Would the rule be otherwise if the real estate were the homestead of one of the tenants in common? Just what could the spouse of the tenant in common holding a homestead interest in the property do which would or could affect the right of the other cotenants or any one of them to have the property partitioned’■? Nothing. The existence of a homestead interest in one of the cotenants may altogether prevent, for a time, any partition in invitum [citing cases]; but where the right to partition is absolute, the fact that one of the. cotenants occupies the property as a homestead is of no consequence . . (Emphasis supplied.)

See, also, Nelson v. Stocking, 154 Kan. 676, 121 P. 2d 215, which quotes, with approval, from the opinion in the early case of Tarrant v. Swain, 15 Kan. 146, the following:

“ ‘Where a person owns an undivided half of a certain piece of land, and resides upon and occupies the land with his family, he may acquire a homestead interest in the land, under the homestead-exemption laws of Kansas, so far as such interest does not conflict with the rights and privileges of his cotenant . . (p. 677.) (Emphasis supplied.)

The rule denying the right of one cotenant to assert a homestead claim as against another cotenant does not live in lonely isolation only in Kansas. The'rule will be found stated in 40 C. J. S. 525, § 88, as follows:

“Under the great weight of authority, there may be a homestead right in property held jointly or in common, or in an undivided interest in property, with the qualification that one joint tenant or tenant in common cannot acquire such a homestead right as will prejudice his cotenant's rights or interests.” (Emphasis supplied.)

In 29 C. J. 849, § 167, the qualification of the rule is stated as follows:

“This rule is subject, of course, to the qualification that the tenant in common or joint tenant can obtain no such homestead interest as will interfere with the rights or interests of his cotenant or any person rightfully claiming, under his cotenant.”

In support of the qualification the text cites many cases, among them our early cáse of Tarrant v. Swain, supra. A short statement of the rule may be found in 26 Am. Jur. 39, § 62. It reads:

“He [a cotenant] may not assert a [homestead] claim which operates to the prejudice of his cotenants or deprives them of their enjoyment of the property . . .”

As was stated in the original opinion, cases from other states can be cited in which it has been held that one cotenant can assert homestead rights as against another cotenant but such cases frequently turn upon the wording of constitutional and statutory provisions different from ours. Nothing is to be gained by further emphasizing the rule in Kansas. It has been followed in this state at least ever since Mr. Justice Valentine wrote, in 1875, in the casé of Tarrant v. Swain, supra, the following:

“Of course, a tenant in common can obtain no such homestead interest as will interfere with the rights or interests of his co-tenant or any other person rightfully holding under his co-tenant.” (p. 149.)

It follows, therefore, that in Kansas one cotenant cannot assert homestead interests as against other cotenants unless the statute under consideration creates such a right.

Application of the cotenancy qualification to the situation presented in the present case may necessitate the following observations: Under G. S. 1935, 22-105, when all of the children of Bessie Cole Coons reached the nge of majority, they were cotenants of their mother in the involved land and their rights as such were enforceable. The fact that they acquired their cotenancies by inheritance rather than by purchase was of no consequence. (See the case of Hazelbaker v. Reber, supra, from which the following is quoted:

“It does not appear (and it is immaterial) whether their common ownership and title vested by deed or by inheritance.” (p. 131.)

If the youngest child of Bessie Cole reached majority while the last-cited statute was in force, any or all of the children thereafter could have maintained a partition action and their mother could not have asserted any. homestead right therein because she would have been asserting it against her cotenánts. The record does not disclose whether the youngest child reached the age of majority before the statute which is now G. S. 1945 Supp., 59-402, was enacted, but.such point becomes inconsequential because the mother of the adult children had remarried. Consequently, when the youngest child reached majority the children became absolute, unrestrained cotenants with their mother in the ownership of the involved land under either of the statutes referred to herein and could have forced partition of the property. Their right of partition was complete and not subject to delay by any statute. Such a status prevailed at the time the mother died. When she died she left no more than a cotenancy interest in the involved property. Consequently, the property involved in this action was clothed with a cotenancy ownership before and when it descended to the heirs at law.

The question arises: Could a survivor’s right to a homestead be enlarged or diminished by reason of the death of the immediate predecessor in title? The negative answer to the question will be found stated in many standard texts. In 26 Am. Jur. 110, § 174, the answer will be found as follows:

“The use or benefit which is secured to the surviving spouse by the provisions of the statute may not be claimed unless the premises were occupied under circumstances giving rise to the homestead right.”

40 C. J. S. 724, § 239, states the rule as follows:

“. . . A surviving spouse, or person within the statute, takes the homestead rights, not by right of survivorship, but as jftoperty set aside by law from decedent’s estate for the benefit of such survivor, and his or her rights are neither enlarged nor diminished by the fact of such death.” (Emphasis supplied.) (Citing Union Nat. Bank of Greeley v. Wright, 78 Colo. 346, 242 Pac. 54.)

The appellant contends, however, that he obtained a “probate homestead right” in the involved property arising by reason of the operation of the statute under consideration and that, therefore, he is entitled to assert a homestead right as against his cotenants. From 40 C. J. S.'725, § 239, the following is quoted: -

“The homestead right set apart to a surviving spouse or minor children is commonly called a ‘probate homestead,’ which, as defined by statute, is a homestead set apart by the court for the use of the surviving spouse and the minor children out of the common property, or if there be no common property, then out of the real estate belonging to deceased; or a homestead to be created by the probate court out of any property belonging to decedent, which was subject to a homestead at the time of his death.” (Emphasis supplied.)

' Obviously, if there is no property which is subject to homestead rights at the time of death as against cotenants, then those claiming as against such cotenants cannot assert the same, and the “probate homestead” character of the claim does not affect the matter. A similar answer to the question here presented will be found stated in 40 C. J. S. 753, § 262, as follows:

“The survivors cannot claim any exemption which the decedent himself could not- have claimed.”

The rule is the same when applied to'cotenants who inherit from a deceased cotenant. From 29 C. J. 1022, § 515, the following is quoted:

“If decedent was a tenant in common, his. surviving children and his widow obtain rights of exemption in the property in jurisdictions where a homestead may be acquired in property so held. And on the other hand the surviving wife is not entitled to a homestead by survivorship in property which was held by herself and her husband as tenants in common in a jurisdiction where the homestead laws do not permit the acquisition of a homestead in property so held.”

See, also, 40 C. J. S. 772, § 268. As hereinbefore developed, tenants in common cannot assert homestead rights as against other cotenants in Kansas, and consequently, their survivors cannot, provided the cotenancy was established prior to the death of the decedent.

Able counsel for the appellant overlook the significance of the cotenant rule in the instant case and seemingly assume that the situation is identical to what it would have been if Bessie Cole Coons had been the sole owner of a segregated part of the property during her lifetime. If, during her lifetime, either Bessie Cole Coons, or her adult children, had seen fit to partition the property in such manner that there would have been set off to her as sole owner a three-fourths part of the property, an entirely different result would have followed. In such an instance hex surviving second husband would have inherited from her an undivided interest in and to such property, which would have supported a claim for the right of homestead occupancy and probably .G. S. 1945 Supp., 59-504, would have been controlling. But the interested parties did not see fit, during Bessie Cole Coons’ lifetime, to have the property divided, either voluntarily or by forced partition.

In enacting G. S. 1945 Supp., 59-402, supra, the legislature did not abolish the rule as to a homestead claim not being maintainable by one cotenant as against another cotenant. The statute is, in fact, a recognition of the cotenancy rule. If it were not for the existence of the cotenancy rule there would be no occasion to put any limitation whatever upon the time and circumstances in which children, who become cotenants by descent, may enforce their rights to partition of a homestead. The statute has no application, however, to a cotenancy status established before the death of a decedent created a cotenancy ownership. It is, of course, correct to assert that when a person dies intestate, without debts, leaving a spouse-and children, such survivors inherit as tenants in common or cotenants any land which the deceased may have owned, including the family homestead. Therefore, it may be contended that the statute pertaining to when a homestead may be partitioned must relate to land owned by tenants in common. Such statute relates to tenancies in common created by death but not before death. The distinction must ever be kept in mind that statutes creating tenancies in common by descent cannot affect the cotenancy status of property fixed prior to the date of their operation.

As was stated clearly on page 334 in the original opinion and again restated herein, we have before us a case involving asserted homestead rights only as between cotenants. Therefore, cases involving homestead rights which can be asserted as against creditors, heirs and remote devisees and others, except cotenants, have no application. We are not holding that it is always essential, in order to establish a homestead right upon real property, that the husband or wife shall have had full title to the property. A homestead right of occupancy may be established upon a cotenancy title, an equitable title, or an executory contract to purchase, a leasehold estate, or an estate for life, as against almost any class of claimants except cotenants. Also it may be noted that we are not holding herein that claimants, in other classes, can assert that property is owned by cotenants for the purpose of resisting homestead rights.

Since the record in the present case clearly discloses that the appellees held unrestricted and unrestrained interests as cotenants in the involved property before the death of their mother occurred, it must follow that her surviving spouse did not acquire any right to assert a homestead interest as against the other cotenants. As between cotenants the property was not subject to a claim of homestead rights and, therefore, the statute pertaining to homestead rights (G. S. 1945 Supp., 59-402) was not applicable.

The ruling of the district court was correct. It "is again affirmed.