Schnabel v. Schnabel's Ex'rx

Opinion of majority of the court by JUDGE DURELLE Reversing. The- facts of this case, together with a discussion of most of the authorities, will be found stated in the separate opinion of Judge G-uffy. However much the majority of the court might be inclined to agree in the reasoning of that opinion, were the question now for the [537] first time presented for decision, the effect of that doctrine would be so far-reaching, and would .so tend to unsettle property rights vested in accordance with the doctrine laid down in previous decisions of this court, that we are constrained to base our judgment upon a different,, if less satisfactory, argument. In this case the will of the testator provided for the payment of his debts, and devised all his estate to his wife, who failed to renounce the will; and the question, now is whether'the wife or the children, or both, are entitled to a homestead. In an opinion by Judge Hazelrigg in Nichols v. Lancaster (Ky.) 32 S. W. 676, a somewhat similar question was under discussion. The court said that: “If the widow fake under-such a will, it is held that she must abide by its terms. In a number of cases it has been held that the owner may sell his homestead and pass the fee, and in Myers’ Guardian v. Myers’ Adm’r, 89 Ky. 442, [12 S. W. 933,] it was held- that the owner of a homestead1 not exceeding $1,000 in value might pass title thereto to his widow and children by will, and his creditors could nor complain. So, in Pendergest v. Heekin, 94 Ky. 384, [22 S. W. 605,] it was held that a debtor may by will, as ..well as by deed,, invest his wife or child with title to his homestead, free from the claim of his creditors.” This is followed by the significant language: “No devisee who would not be entitled under the statute to a homestead has been held entitled under a will, but the taker is said to hold, not under the statute, but under the will. Whether this conclusion is entirely logical, and in consonance with the statute which gives the widow and infant children only the use of the property for a given time, it is too late now to inquire.” The authorities cited in Nichols v. Lancaster, and. in the separate opinion of Judge Guffy in this case, abuncL [538] antly show the recognized doctrine to be that the testator may by will vest bis widow with a fee-simple title in property occupied by him .as a homestead, so as to defeat the claims of creditors, and, further, that if the will contains a provision for the payment of debts, and the widow fails to renounce its provisions, she takes the homestead property with that burden upon it; for, as said by Judge G-uffv in a very recent case in which that question was presented (Harrison v. Taylor’s Adm’r [Ky.] 51 S. W. 193): “It is well settled that a person can not claim under a will, and also against it; and, inasmuch as appellant accepted the provisions of the will of her husband, she takes the entire property subject to his debts, and can not claim either homestead or dower against his credi. tors.” Under the doctrine thus explicitly declared, there have doubtless been very many transfers by widows of fee-simple title in homesteads devised to them by will. The doctrine of stare decisis should apply, to prevent this court announcing principles at variance with this doctrine, to unsettle and disturb the property rights acquired under such transactions. We are of opinion, therefore, that, by her failure to renounce the provisions of her husband’s will, Mrs. Schnabel is estopped to claim her right of homestead against the creditors. . The claim of the children, however, presents a different question. Being infants, they could not renounce the provisions of the will, and are not estopped by their failure to do so. Their mother’s acceptance of the will’s provisions operated to give her a fee .simple, but subject to the children’s right of joint occupancy with her, under the statute, until they should become of age. Under the terms of this will, the widow’s interest was. subject to the payment of her husband’s debts, but that can not affect [539] the children’s right to a joint enjoyment of the entire homestead for the entire period allowed by the statute. It follows, therefore, that they are entitled to the use of the homestead until they arrive at the age of twenty-one, respectively; and, as the property has been sold, they are entitled to the interest upon $1,000, the payment of which will be provided for by the chancellor, by proper order, upon return of the case. The chancellor may, in his discretion, as he may deem for the best interests of the children, allow them the present cash value of their interest,"or may direct a reinvestment of the fund in a homestead for their use for the statutory period. For the reasons given, the judgment is reversed, upon the appeal of the children, and the cause remanded, with directions to enter a judgment in conformity with this opinion.