McCaleb v. Burnett

Chalmers, J., delivered the opinion of the court. Mrs. Indiana McCaleb, who was a widow and the head of a family, possessed of a large real estate, upon which she resided, died in 1860, leaving a number of minor children. Her estate proving insolvent, the lands were sold in 1867 by decree of the Probate Court, and were purchased by L. N. Baldwin. By the terms of the decree the sale was made “ subject to the homestead exemption for the benefit of the family.” The exemption was not laid off. Baldwin subsequently conveyed the lands to John B. and William C. McCaleb, who jointly held, without division, until the appellee, Burnett, became the owner of the interest of John B. Burnett now seeks a partition with his co-tenant, William C. McCaleb, alleging that the youngest child of Mrs. Indiana McCaleb has now come of age, in consequence of which the homestead right of her children has ceased, and he and his co-tenant have become the owners of an unincumbered fee in the whole lands. The 'children admit that they have all become adults, but insist, nevertheless, that Burnett has no interest in so much of the land as is exempt, because he holds derivatively from Baldwin, who purchased, as they contend, only the lands exclusive of the homestead, and, therefore, acquired no interest in that. This is erroneous. Baldwin purchased the whole land, “ subject to the homestead exemption for the benefit of the [86] family;” that is to say, he became the owner in foe of the whole tract, subject to the right of the children to possess and occupy the homestead until the youngest child should become óf age. This was the law at the date of Mrs. McCaleb’s death, and no subsequent change in the statutes could affect the rights which by that event became fixed. Code 1857, p. 529. Under this law the homestead exemption descended to the children, some one of them continuing to occupy it until the youngest became of age. Upon the arrival of the youngest at the age of majority, the homestead became subject to the debts of the deceased, if there remained any subsisting, and it would then become the duty of the administrator to sell it for the unpaid and unbarred debts. In the case at bar, however, the sale of the reversion in the homestead took place in advance, the purchaser acquiring the fee, but without right of enjoyment until the termination of the exempt estate of the children. He stood, therefore, upon the footing of the purchaser of realty which is sold subject to the dower rights of the widow. He acquired the fee in the whole tract, subject to an incumbrance of a particular estate, as to a portion of it. Upon the termination of the particular estate, he enters upon the enjoyment of the whole. Mrs. McCaleb’s youngest child having become of age, the homestead exemption has ceased. If it had been set apart after her death, and excluded from the sale, it would now be liable to her debts, if any valid debts remained. If there were none, it would be the absolute property of the children, as tenants in common. But this course was not adopted. The court, as it had a right to do under the law in force at her death, sold the reversion in advance, and the title of the purchaser and his vendees has now, by the termination of the exemption rights, become absolute to the whole tract. Decree affirmed.