Taylor v. Taylor

79 N.E. 139, 223 Ill. 423

• Court: Illinois Supreme Court
• Decided: October 23, 1906
• Status: Published

Opinion

Mr. Justice Wilkin

delivered the opinion of the court:

Appellee has made a motion to dismiss the appeal upon the grounds that a freehold is not involved, and that this court is without jurisdiction and the appeal should have been taken to the Appellate Court.

It seems to be conceded that the only rights which appellee could have in the premises, in any event, would be her homestead .and the inchoate right of dower, and appellant insists she has neither. We have frequently held that a freehold is involved, within the meaning and contemplation of the constitution and statute, only in cases where the necessary result of the judgment or decree is that one party gains and the other loses a freehold, or where the title to the freehold is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue. (Sanford v. Kane, 127 Ill. 591; Malaer v. Hudgens, 130 id. 225; Goodkind v. Bartlett, 136 id. 18; Nevitt v. Woodburn, 175 id. 376.) The question whether the right of dower of a married woman, before the death of her husband, involves a freehold has been before us for decision, and we held that an estate of dower is a freehold; but a right of dower before it has been consummated by the death of the husband is a mere intangible, inchoate, contingent expectancy, and not only is not an estate in lands, but does not even rise to the dignity of a vested right. (Goodkind v. Bartlett, supra.) If the premises were not occupied by the parties as a homestead and the inchoate right of dower of appellee was the only property right involved, then, under that decision, a freehold would not be involved. But appellant claims that her homestead rights necessarily involve a freehold, and the appeal was therefore properly taken to this court.

The homestead right was unknown at common law and exists only by the statute. The statute of this State (Hurd’s Stat. 1903, chap. 52, p. 943,) was passed in 1873. Section 1 provides that every householder having a family shall be entitled to an estate of homestead to the extent in value of $1000 in the farm or lot of land, and buildings thereon, owned or rightly possessed, by lease or otherwise, and occupied by him or her as a residence. Section 2 provides that such exemption shall continue after the death of such householder for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead, and of the children until the youngest child becomes twenty-one years of age, and in case the husband or wife shall desert his or her family the exemption shall continue in favor of the one occupying the premises as a residence. Section 4 provides the manner in which the estate shall be extinguished and conveyed.

The provisions of the foregoing statute create an estate in the land, and not a mere exemption, such as existed prior to the statute of 1872. (Warner v. Crosby, 89 Ill. 320; Browning v. Harris, 99 id. 456; Mueller v. Conrad, 178 id. 276.) Where the right of homestead is directly involved, as where the husband’s vested right is in question, or where the husband has died or deserted the family, as provided in section 2, and the estate is held by the wife and children, a freehold is involved. (Snell v. Snell, 123 Ill. 403; Hagerty v. Hagerty, 149 id. 655.) But that is not the question at issue here. The bill alleges that the premises are occupied by the parties as a homestead. There are no minor children, and the naked question is whether the estate of the wife, under such circumstances, involves a freehold. It will be observed that section 1 provides that every householder having a family shall be .entitled to an estate of homestead in the premises occupied by him or her as a residence. In this case, and in every other case where the husband is living and residing with his family, he is the householder and head of the family contemplated by this section. The homestead is his and is vested in him, and continues to be so vested as long as he lives and resides with his family. It is only upon his death or when he deserts his family that, it becomes vested in the wife and children under section 2. Section 16 of chapter 68 (Hurd’s Stat. 1903, p. 1039,) provides that neither the husband nor the wife can remove the other or their children from their homestead without the consent of the other, unless the owner of the property shall in good faith provide another homestead suitable to the condition in life of the family. Considering this section with those creating the homestead, we are of the opinion that the homestead right is primarily vested in the husband and constitutes a freehold, and that while the wife has the right of occupancy with the children, yet during the lifetime of the husband and during the time he continues to reside with them her rights and the rights of the children are merely contingent upon the conditions provided in the statute, and do not rise to the dignity of a freehold estate. Their rights may never become a freehold, but may be defeated by the death of the wife, or her divorce under certain circumstances, or by the removal of the family from the premises.

We think, on principle, the wife’s right of homestead, under the facts of this case, is not unlike the inchoate right of dower, and that no freehold is here involved.

The appeal was improperly brought to this court and must be dismissed.

, , Appeal dismissed.