Keyte v. Peery

Ellison, J. From the statement in this case it will be seen that the contest here is as to the rights of the parties under the statute of homesteads and the law of estates by the curtesy. If the land was plaintiffs’ homestead, they are entitled to recover. If it is the property of John A. Keyte, the surviving husband, as tenant by the curtesy, they have no right to recover. Though it is conceded that defendant, Peery, obtained no right to the property by his purchase at the sheriff’s sale, yet, if the estate belonged to the surviving husband as tenant [400] by the curtesy, the plaintiffs have no title upon which to base their action, and the judgment rendered by the trial court is without legal support. Mrs. Keyte died prior to the amendment of the homestead law in 1874, and, in consequence, the statute unamended applies. By that statute if the husband died leaving a widow only, the homestead vested in her solely and absolutely. If he left minor children only,, the homestead vested in them till their majority. If he left both widow and minor children, the homestead vested in them jointly till the children became of age, and then absolutely in the widow or her heirs. Skouten v. Woods, 57 Mo. 380. The contention here is, that the real estate vested in plaintiffs till they became of age. The homestead is reserved for the head of a family, and, ordinarily, would cease with the life of the head of the family. It descends to others only by force of section 5, page 450, Revised Statutes, 1865 (now Rev. Stat., 1879, sect. 2693). That section is as follows : “Sect. 5. If any such housekeeper or head of a family shall die, leaving a widow or any minor children, his homestead, to the value aforesaid, shall pass to and vest in such widow or children, or if there be both, to such widow and children, without being subject to the-payment of the debts of the deceased, unless legally charged thereon in his lifetime; and such widow and children respectively, shall take the same estate therein of which the decéased died seized ; provided, that such children shall, by force of this chapter, only have an interest in such homestead until they shall attain their majority,” etc. This statute only gives a homestead by succession when it is owned by the husband. This is the evident meaning of the statute. The homestead descends when the housekeeper or head of a family shall die, leaving a widow or any minor children. His homestead “ shall vest in such widoio ” without being subject to the pay [401] ment oí' debts of the deceased unless charged in Ms lifetime. The section is susceptible of but one meaning. If a married woman own land by general title, occupying it as a homestead, and die, leaving a husband and minor children, there is no provision of law for the continuation of homestead in either the husband or children. Homestead succession has nothing to uphold it but the force of positive statute law. The right depends for its existence upon the provisions, of the written law, having never been recognized by the common law. If we were left to the first section of the homestead law, Statutes 1865 (Rev. Stat., 1879, sect. 2689), the homestead right therein vouchsafed to the housekeeper or head of a family would end with the life of the owner. Its continuation after the decease of the owner is by force of section 5, Revised Statutes, 1865, (Rev. Stat., 1879, sect. 2693), and that section, as we have s.een, only continues it in case of the death of the husband. There are a variety of instances in which a homestead is secured to a person while" living, as being the head of a family, which is not carried by succession to the family after the death of the owner. A brother may hold a homestead by reason of having living with and supporting his dependent brothers and sisters. An unmarried son may hold property exempt, by reason of his mother living with him and depending upon him for support; yet it would not be pretended, upon the death of either of these, the homestead right continued, in the mother in the one case, or in the brothers and sisters in the other, for the simple reason that the statute nowhere creates such right. There is a reason which may have actuated the legislature in providing a homestead right for the children, only in case of the father’s death. It is known and recognized that children are left in a much more helpless condition by the death of the father than of the [402] mother, and stand in much greater need of the care and protection of the law. It follows, therefore, that, on the decease of Mrs. Keyte, whatever homestead right existed, ceased, and plaintiffs took no interest therein under the homestead law. Thus nothing stood in the way of the husband’s curtesy and estate recognized in Missouri. The judgment is reversed. The other judges concur.