Robinson v. Smithey

80 Ky. 636, 1883 Ky. LEXIS 10

• Court: Court of Appeals of Kentucky
• Decided: January 24, 1883
• Status: Published

Opinion

JUDGE PRYOR

delivered the opinion op the court.

We find nothing in the cross-petition of Smithey, who-claims to have purchased under the various executions, against W. C. Robinson and his mother, Mary Robinson, in which he seeks to oust the widow of the possession. In-fact, this pleading does not state facts authorizing such a recovery, and it is difficult to tell what relief the appellant is claiming. If he has purchased and obtained his deed, or shows that in equity he is invested with such a title as entitled him to the possession, and asks such relief, then the chancellor may give it to him, but not before. That Mrs. Robinson is entitled to a homestead we think is . clear. Her husband devised the entire tract of land to her for life, remainder to his children, and she was in the actual possession and occupancy with her family. This is not a proceeding to subject the estate to the payment of her husband’s debts, but the creditor is proceeding to coerce payment of her individual indebtedness. She is the owner and in the possession of this tract of land, with a life-estate vested in her by the provisions of the will. She can use, sell, or dispose of this interest as she pleases, and we see no reason why her right to a homestead is not embraced by the statute. She occupies it as a homestead, and owns it for- life. She is asserting the right because she is. the owner, and not by reason of having derived it from the husband. It is immaterial in what manner, she derives title, If she is the owner, and occupies the estate as a homestead with- her family. The chancellor cannot subject it, without her consent, to the payment of her individual indebtedness. It is not necessary to determine whether a homestead can be held in an- estate for years against the claims of creditors, but in a freehold estate the right certainly exists, if the debtor is occupying it as a bona fide housekeeper with a family. In some of the states the exemption is held to apply to an estate for years. (See Paton v. Deberard, 13 Iowa; Johnson v. Richardson, 33 Mississippi.) In Illinois the owner of a life-estate is held entitled. (Dunn v. Chapman, 25 Illinois.)

The judgment, therefore, on the original appeal must be reversed, and the cause remanded, with directions to permit the "appellee Smithey to amend his pleadings, and to bring all the parties in interest before the court; and as the pleadings must be" amended, the appellant should bé allowed to show, .if she can, her offer to redeem, and for this purpose should be allowed to file additional pleadings.

The judgment is affirmed on the cross-appeal, by which •the appellant’s right to a homestead is controverted.