Myers' Guardian v. Myers' Adm'r

CHIEF JUSTICE LEWIS dkmvbkbd the opiotoii <m the codbt.. By his will, dated February 12, 1885, and proved and admitted to record February 23, 1885, Michael A. Myers devised to his wife, Ann J. Myers, for life, remainder to his daughter, Hattie E. Myers, all his estate, consisting of a small amount of personalty, since consumed, and a house and lot, the subject of controversy. June .8,' 1888, J. H. Power was appointed administrator of the estate of the testator, the widow having died in May, 1888, and June 11, 1888, instituted this action for a sale of the house and lot, and application of the proceeds to payment of creditors, whose debts, as alleged in the petition, amount to about four hundred and fifty dollars, and the cost of administration and •of the action. Hattie E. Myers, who is an infant, by [444] her guardian ad litem, filed an ■ answer, alleging ■ her father,,.at the time of his dfeath, was a bona fide housekeeper,' with a family,- and as such occupied the house and' lot, which is of less value than one thousand dollars, and that, in virtue of his will, her mother being dead, she is the ■ absolute owner thereof, and asked judgment to that effect; but in a second paragraph she asked that, "in case the court adjudged the property subject to payment of' debts against the testator, her homestead right to the proceeds be saved, and set apart to her: ' ' . The court,, however, sustained a general demurrer filed "by the administrator to the answer, which had been made a counter-claim,' and, in pursuance of the judgment,.rendered,, the house and lot were sold by a commissioner, bringing at the sale five hundred' and five dollars; wliich Will, unless'' this -court'intervenes, be paid out according1, to’thfe práyer'of1 the administrator, excluding the infant' as well-from what is claimed for her in'virtue of the statute as under the will of her father. Section IB, article 13, chapter 38, General Statutes,, in expfe'ss terms provides the homestead exemption in favor of an '.execution'debtor,, or. one against whom judgment has-been, rendered,'shall continue after.his death for" the benefit, of his widow and children, subject, however, -.to be estimated in allotting dower; and, of course, the reason ,of the law requires, and, consequently, we must presume the Legislature intended; such exemption should exist, and be continued' as to'claims of creditors proved in an action for the' settlement of estates of deceased persons under provisions of the Civil Code.' ‘ [445] Section 14 provides: “The homestead shall be for the use of the widow so long as she occupies the same, and .the unmarried infant children of the husband shall be entitled to a joint occupancy with her until the youngest unmarried child arrives at full age. But the termination of the widow’s occupancy shall not affect the right of the children; but said land may behold, subject to the right of said widow and children, if a sale is necessary to pay debts of the husband.” By a fair construction of that section, tlie widow and children can not be disturbed in possession of the homestead while the widow lives, nor, in case of her death or abandonment, can the children be deprived of the possession and enjoyment of it before they arrive at full age; and in case of a sale of the homestead, the widow, and in case of her death or abandonment, the infant children, are entitled to the use ■of the proceeds; for not only is it in terms provided that the termination of the widow’s occupancy shall not affect the right of the children, but this court, in the, cases of Eustache v. Rodaquest, 11 Bush, 46, and Little’s Guardian v. Woodward, 14 Bush, 585, has decided that the children, when there is no widow, would be entitled to the exemption. Such being the condition and relative rights of the widow and children when the owner of a homestead dies intestate, we are. at a loss to see how the failure of the widow to exercise an election not to take under a null of such owner could prejudice his infant children; and, consequently, it seems to us the case .of Watson v. Christian, 12 Bush, 524, has no application, for there it was .simply decided the widow, who had not elected to [446] renounce the will of her husband, by which it was provided his debts should be first paid out of the homestead before she was entitled to any part of the estate devised, could not claim as widow under the statute, the right of the infant children, if there were any, not being involved at all. But the further, and hitherto undecided, question is presented, whether the owner of a homestead not exceeding one thousand dollars in value can pass , title to the property to his widow and children by will. It has been decided by this court, more than once, that the owner of a homestead has power, under the statute., to convey, by deed, and pass a good title to the property, not exceeding one thousand dollars in value, the reason being that such conveyance does not affect rights of creditors. (Brooks v. Collins, 11 Bush, 622; Richart v. Utterback, 10 Ky. Law Rep., 548.) In the last named case, the debtor conveyed the homestead to his children, in consideration of love and affection, and a continuance by them of kindly service and attention during the remainder of his life; but the use and occupation thereof was, by the terms of the deed, reserved by the grantor during his life. Although the effect of that conveyance was to postpone the use and enjoyment of the property by the grantees until after death of the grantor, and to pass to them only an interest in remainder, nevertheless it was held, that as the owner of the homestead had the right to convey the whole estate, there was no reason for denying him the right to convey less than the whole, for, in neither case, were creditors thereby prejudiced. [447] The reason of the homestead statute, and manifest policy of the Legislature, is to secure to each housekeeper, with a family, a homestead, of the value of not more than one thousand dollars, that shall not only be exempt from coereive sale, but may be sold and conveyed by the debtor. As, therefore, credit is not, nor need be given to the owner of such homestead, upon the faith it can and will be made liable for any debts contracted by him, no one is or can be prejudiced or injured, in fact or in law, by the transfer or conveyance of it by him, whether to his wife and children for a good, or to strangers for a valuable, consideration. And it would, therefore, seem no more injury to creditors, nor in contravention of the purpose and reason of the homestead law, for the debtor to pass the title by will than by deed; for if, as has been held, he can, by deed, and for merely love and affection, convey the remainder interest to his children, reserving a life estate to himself, we see no reason why he may not do practically the same thing by will, because Ms creditors are prejudiced in one state of case no more than the other; in fact, they are not wronged in either ; but, in both, the object of the law, which is to secure to every housekeeper, with a family, the certain and uninterrupted enjoyment of a homestead, is accomplished. In our opinion, Hattie E. Myers was, under the will of her father, entitled to the interest in remainder of the house and lot; and it having been sold, and her mother being dead, she is now entitled to the whole amount for which it was sold. Wherefore, the judgment is reversed, and cause remanded for further proceedings consistent with this opinion.