Hoffman v. Neuhaus

Morrill, C. J. In this case the children of one Miller, deceased, petitioned the county court for a division of the homestead, now in possession of the widow of the deceased, Miller, and her minor children. The county court dismissed the petition, and the cause was taken to the- district court, which divided the homestead into two equal parts, giving one part to the widow, and the other part to be divided equally among all the children, as well those of age as minors. The constitution of the state, and the laws made in obedience thereto, after defining a homestead, secures it to the family. When children arrive at the age of majority, and especially when they leave the family of their father and mother and become a separate family, they are not any longer a part of the old family. They can acquire a homestead of their own, which will be secure from all interference. We deem it unnecessary to say what shall be done with the homestead when the children shall all become of age or when the widow shall die. It is sufficient to meet this-case as it appears by the record. The homestead cannot be divided out, for that would, in effect, partially destroy it, and thus plainly violate its sacred character. As long as there is a family having a head, and as long as this head of a family chooses to occupy the homestead, so long it cannot be interfered with for any purpose. The creditors of an estate have greater rights to have their debts paid than the heirs have to inherit the estate. The statute (Paschal’s Dig., Art. 1305) requires the chief justice to set apart for the use and benefit of the widow and children what is exempt from execution. It also provides that in-case there be not such specific property, it shall be the duty of the chief justice to expose so much of [637] the estate for sale as will be sufficient to raise the deficit, and to pay one-half of the same to the widow and the other half to the children. And it is probable that from this fact the district judge conceived the idea that the homestead could be so divided. But the proviso in this section will show the fallacy of this doctrine, as it expressly requires, if the estate is not insolvent, that nothing in this act shall be so construed as to prohibit the distribution and partition of said estate among the heirs and distributees thereof, including the portion designated and set apart for the widow, excepting the one year’s provision. As the heirs of a deceased person who has children are these children, and as a distinction is drawn between the heirs Rnd the widow and children, the word children must be construed to mean minor children; and it is for these minor children and the head of the family, whether that head of the family consists of father or mother or guardian, that the homestead is reserved. The petition alleges the insolvency of the estate, and seeks a division of the homestead. And because the homestead is reserved to the head of the family, adversely to both heirs and creditors, we consider the judge erred in decreeing a division of it, and the judgment is reversed, and the cause Dismissed.