Gorman v. Hale

ELLISON, J. James and Patrick Gorman (brothers) owned each an undivided half of sixty-three acres of land in Schuyler county upon which they resided together. James married and three children, the present plaintiffs, were born. Patrick continued his joint occupancy. James afterwards died and the widow bought Patrick’s undivided interest. She after-wards sold all her right, title and interest in the land to defendant Ratchford and one Probasco, and the latter afterwards sold his interest to Ratchford, leaving the latter the full owner of the widow’s interest in the whole tract. The widow afterwards married and left the premises, taking with her the plaintiffs who were all three then minors, the youngest yet a minor when this action was begun. Ratchford took possession of the land after the widow left and remained till his death. These plaintiffs then presented the present claim in the probate court as their action against defendant as administrator, they claiming a right of homestead and asking the allowance, for each, for the rents of the land up to the time the adults reached majority and for the minor. The probate court allowed the claim and so did the circuit court on appeal. We find that the circuit court in sustaining the claim of plaintiffs is supported by the ruling of the Supreme Court. The defendant contests the plaintiffs ’ right on the ground that there can not be a homestead in real estate occupied in joint tenancy. As pointed out by defendant’s counsel this has been the ruling in many States, but with us the homestead right is supported in such case. A recent case by Judge Pox has so determined the law. Clark v. Thias, 173 Mo. 628. Defendant then next contends that the widow has quarantine free of rent in the husband’s lands occupied at his death, that this right is superior to dower and homestead until they be assigned, and that it may be sold, so that the grantee will stand in the widow’s place. Authorities are cited in support of this view. But the [179] Supreme Court, in a late ease, lias expressly ruled that,. notwithstanding the widow’s right of quarantine and dower, yet the minor children have an interest in the homestead of which she could not deprive them, and that they were entitled to the rents and profits up to their majority. Phillips v. Presson, 172 Mo. 24. It is suggested that the rights of the minors should not begin until the homestead was ascertained by being-set off to them (Gentry v. Gentry, 122 Mo. 202), but whatever force there may be in such suggestion can not affect the present case, since it appears there were but sixty-three acres in the farm and only one-half of that claimed as homestead under the deceased father. The judgment must be affirmed. All concur.