§§ 542-545]

HOMESTEADS

98

99

ceptions filed to the commissioners' report.
On appeal to an intermediate court the time
when debts of the decedent were contracted may,
on appeal to an intermediate court, be shown by
other evidence than the commissioners' report.
An intermediate court did not err in refusing to
order a reassignment of a single homestead to
several children of decedent, where the only ques-
tion before it was whether several homesteads could
be allotted to the children respectively.1

[ 543] b. Certiorari. Notwithstanding the
[§
probate court's want of jurisdiction to sell a home-
stead during the minority of the children, it is
not error on certiorari to refuse to quash an order
confirming a sale of decedent's property, on the
ground that part of the lands constitute the home-
stead of deceased, and that the sale was made dur-
No particular de-
ing the minority of his child.3
scription of the property is necessary on certiorari
from proceedings in which the probate court failed
to set apart a homestead for minors and order a
sale of the land. On certiorari to a district court
to correct an order of the probate court allotting

70 P 116.

4

98. Dossey v. Pitman, 81 Ala. 381, 2 S 443.

99. Perrin v. Sargeant, 33 Vt. 84. See generally Appeal and Error § 2650.

1. Carolina Nat. Bank v. Senn, 25 S. C. 572.

2. See generally Certiorari 11 C. J. p 80. See also supra § 468.

at

homestead, a decree of the county court recogniz-
ing a rent contract as superior to the homestead
claim cannot be pleaded in bar.5

[§ 544] L. Protection of Rights by Redemption from Liens. The surviving wife and children are entitled to protect their right in the homestead by redeeming from any lien or charge which threatens to deprive them of its shelter.

8

6

[ 545] M. Transfer or Encumbrance-1. By Surviving Wife. Where under the homestead laws the widow's homestead right by survivorship is conditioned on her continued occupancy of the premises, she has no such right or interest as may be conveyed or encumbered; and as was elsewhere shown such an attempted conveyance operates as a forefeiture of her right and confers no right or However, under the hometitle on her grantee.10 stead laws of many jurisdictions, the widow's right in the homestead premises is not conditioned on 11 and it is held that she may continued occupancy, convey or encumber her right or interest in the homestead premises, especially where she owns Own in her right and not the property in

Whittle v. Samuels, 54 Ga. 548.
[b] An oil and gas lease of her
homestead and dower land, executed
by a widow, was held to be invalid
as against the heirs at law who were
owners of the remainder after the
and her
expiration of her estate;
lessee had no right to open a new
well. Lee v. Straughan, 146 Ark.
504, 226 SW 171.

[c] In Louisiana it is held that
the waiver or renunciation of the
homestead claim, it being a provis-
ion of law in favor of the destitute,
is against public policy; and a con-
of the homestead by the
veyance
widow without consideration is void.
Comeau v. Miller, 46 La. Ann. 1324,
16 S 172.

3. Burgett v. Apperson, 52 Ark. case the 213, 12 SW 559 (in such circuit court having proceeded by certiorari, no guide enabling it to which the proseparate the lands bate court had power to sell from those constituting the homestead, the heir will be left to his action law for possession of the latter). [d] Effect of acquisition of ab4. Connell v. Chandler, 11 solute title to reversionary interest. Oldham v. McIver. 49 Tex. 556.-Where the beneficiaries of a homeFirst Congr. stead estate set apart under Civ. Code 6. Rapids Cedar Church v. Terry. 130 Iowa 513, 107 (1910) §§ 3416, 3417, acquire absolute title to the reversionary interNW 305, 114 AmSR 443. est in the property out of which the was carved, and homestead estate

249.

5.

Tex.

any

applied. Where [a] Rule member of a family occupying and it does not appear that it was the using a homestead in common with other members acquires a tax title intention of the beneficiaries to keep the two estates separate, the lesser to the common home, it operates as mere payment of the tax or redemp-homestead estate is merged in the whom the two estates tion thereof from the sale, and the greater absolute estate, and the beneholder of the apparent legal title ac- ficiaries in by security deed. quired is a trustee for the head of unite may convey the fee in the land the family in whom the homestead absolutely Cedar Ra- Nash v. People's Loan, etc., Co., 151 was originally vested. pids First Cong. Church v. Terry, Ga. 40, 105 SE 641; Muscogee Mfg. 130 Iowa 513, 107 NW 305, 114 Am Co. v. Eagle, etc.. Mills, 126 Ga. 210, 54 SE 1028. 7 LRANS 1139; Goodell SR 443. v. Hall. 112 Ga. 435, 37 SE 725. 10. See supra § 487. 11. See supra § 518; and infra note 12.

7. Transfer or encumbrance: By surviving spouse of rights of children see supra § 493.

Of original homestead see supra §§ 253-340.

8.

See supra § 518; and cases infra note 9.

V.

or

cases

133
Norton,
V.
12. Cal.-Hodge
Cal. 99, 65 P 123.
Ill-Gibbs v. Gerdes, 291 Ill. 490,
126 NE 155; Plummer v. White, 101
Ill. 474; White v. Plummer, 96 Ill.
394.

256.

Ala. 9. Gilbert v. Pinkston, 167 490, 52 S 442, 140 AmSR 89; Norton v. Norton, 94 Ala. 481, 10 S 436; BarKan.-Dayton v. Donart, 22 Kan. ber v. Williams, 74 Ala. 331; Gatlin v. Lafon. 95 Ark. 256, 129 SW 284; Minn. McCarthy v. Van Der Mey, Sanson v. Harrell, 55 Ark. 572, 18 Turner, 29 42 Minn. 189, 44 NW 53. SW SW 1047; Johnston Mo.-Dennis v. Gorman, 233 v. Donalson, 147 v. King, 119 Mo. Ark. 280; Yeates 50; Weatherford V. Heiss, 90 94 SE 465: Campbell Ga. 335. 51, 24 SW 772; Mack v. Whisman, 183 Ky. 256, 209 SW 27; 183 Ky. 80, 208 Mo. 578, 3 SW 80; Richards v. Smith, Tobien v. Gentry, SW v. Claypool, 179 47 Mo. A. 619. 235; Jackson Ky. 662, 201 SW 2; Bloch v. Tarrent, 122 Ky. 139, 91 SW 275, 28 KyL 1066, 12 AnnCas 785; Clay v. Wallace, 116 Ky. 599, 76 SW 388, 25 83 SW KyL 820; Jones v. Green, 582, 26 KyL 1191; Kimberlin v. Manson. 62 SW 494, 23 KyL 42; Deboe v. Rushing, 51 SW 613, 21 KyL 423 (recognizing rule); Freeman v. Mills, 101 Ky. 142, 39 SW 826, 19 KyL 316. [a] Rule in Georgia under former constitutional provisions see Fleetwood v. Lord, 87 Ga. 592, 13 SE 574; Linch v. McIntyre, 78 Ga. 209;

12

as

125; Probate Judge v. Simonds, 46
N. H. 363; Atkinson v. Atkinson, 37
N. H. 434; Norris v. Moulton, 34 N.
This rule was materially
to occu-
H. 392.
changed by the act of 1862 which
omitted the limitation as
pancy by the widow and children and
substituted the words "for and dur-
ing the life of such wife or widow
and the minority of such children"
in its stead, thereby abolishing the
the es-
condition of actual occupation upon
which the continuance of
dren in a homestead set off and as-
tate of the widow and minor chil-
Lake V.
signed to them was made to depend
under the act of 1851.
Page, supra.

Okl.-Hogan v. Reiker, 206 P 203.
Or.-Wycoff v. Snapp, 72 Or. 234,
State
v. Farmers'
143 P 902 (fee simple title).
S. D.-Bailly
Tenn.-Grier v. Canada, 119 Tenn.
Bank, 35 S. D. 122, 150 NW 942.
17, 107 SW 970; McCrae v. McCrae,
103 Tenn. 719, 54 SW 979; Delk v
Yelton, 103 Tenn. 476, 58 SW 7299
Cowan v. Carson, 101 Tenn. 523, 50
SW 742; Tucker v. Tucker, 100 Tenn.
310, 45 SW 344; Mason v. Jackson,
(Ch. A.) 57 SW 217; Nelson v. Theus,
5 Tenn. Civ. A. 87.

Tex. Schneider v. Bray, 59 Tex. 670; Rainey v. Chambers, 56 Tex. 668; Grothaus v. De Lopez, 57 Tex. 17; Johnson v. Taylor, 43 Tex. 121; 228 SW v. Schutze, (Commn. A.) Green v. Crow, 17 Tex. 180; Dabney 176; Spencer v. Schell, 107 Tex. 44, 173 SW 867 [aff 142 SW 111]; Adams v. Bartell, 46 Tex. Civ. A. 349, 102 SW 779; Kiolbassa v. Raley, 1 Tex. Civ. A. 165, 23 SW 253.

[a] Occupation with minor children immaterial.-(1) A surviving wife may mortgage the homestead to secure a owned as her separate estate or the concommunity homestead community debt, although it the family stitutes at the time the home of other constitutents of and the mortgage may be foreclosed, although she has minor children and Spencer is occupying it as a home. v. Schell, 107 Tex. 44, 173 SW 867 [aff 142 SW 111]; Adams v. Bartell, 46 (2) For power of surviving husband to Tex. Civ. A. 349, 102 SW 779. sell or mortgage community homestead see infra § 546 note 25. [b] Conveyance after remarriage.

Mont.-Kerlee v. Smith, 46 Mont. 19, 124 P 777. Nebr.-Pulver v. Connelly, 93 Nebr. 188, 139 NW 1014: In re Fletcher, 83-The surviving wife has the right to bind her interest in homestead NW 232; Nebraska 156, 119 Nebr. tending time for payment of purL. & T. Co. v. Smassall, 38 Nebr. 516, by deed of trust for purpose of ex57 NW 167. N. H.-Lake v. Page, 63 N. H. 318, chase price, under Rev. St. (1879) Under former home-art 2854, in force at such time, alher 319, 1 A 113. stead provisions, however, the wid- though she had remarried at time was a mere personal of execution of deed in trust, the transaction being to preserve ow's interest right to occupy for life and not an estate which could be transferred to separate estate and being merely a Cross v. Weare, 62 N. H. change in the form of the indebtedanother.

16

widow; 13 but such a conveyance will not be allowed
to operate to the prejudice of the homestead rights
of the surviving minor children.14 This right is in
no way affected by a statute making a conveyance
by the owner of a homestead invalid unless both
husband and wife join in the conveyance,
15 since
the statute has ho application whatever to a con-
veyance by the surviving spouse.1 Nor is her
right to convey such interest affected by a con-
stitutional prohibition against partition of a home-
stead during the lifetime of the surviving husband
and wife. 17 In some jurisdictions, where the right
of the widow to convey or encumber the homestead
is recognized, it is held that the right cannot be
exercised before the homestead has been set off
according to law;18 in others that, until the home-
stead has been duly set off, it cannot be conveyed
except to the owner of the fee;19 but in other
jurisdictions it has been held that the widow's

ness, and not the creation of a debt.
W. C. Belcher Land Mortg. Co. v.
Taylor, (Tex. Commn. A.) 212 SW
649 [rev (Civ. A.) 173 SW 278].
[c] A quitclaim deed by the
widow of the owner of a homestead
conveyed all of her homestead rights
in the property. Dennis v. Gorman,
(Mo.) 233 SW 50.

interest in the homestead property may be transferred before it has been set apart to her.20

24

21. McMahon v. Iowa Ice Co., 137 Iowa 368, 114 NW 203; Smith v. Eaton, 50 Iowa 488; Butterfield v. Wicks, 44 Iowa 310; Shepard V. Browning, 156 Ky. 194. 160 SW 950. Clay v. Wallace, 116 Ky. 599, 76 SW 388, 25 KyL 820. See Small v. Wicks, 82 Iowa 744, 47 NW 1031 (where this rule was recognized).

[§ 546] 2. By Surviving Husband. Where the right conferred on the surviving husband by the homestead laws is one merely of occupancy, the right is not of such a character as can be conveyed or encumbercd;21 and an attempted transfer operates as an abandonment of the homestead right. 22 And likewise his procuring an unconditional sale and conveyance in a suit instituted for that purpose against the minor children is an abandonment of the homestead,23 although an offer of the property for sale will not of itself have such effect. However, under the homestead laws of some jurisdictions the right which passes to the surviving husband is greater than one of mere occupancy and he may mortgage or encumber the homestead property.25 Under the statutes of Illinois it was held that a surviving husband could [a] In California and Oklahoma | v. Schnebly, 103 Mo. 368, 15 SW (1) the widow may mortgage her 435]. interest in a probate homestead set apart for the use of herself and minor children subject to the right of occupancy of the minor children. Hodge v. Norton, 133 Cal. 99, 65 P 123; Herrold v. Reen, 58 Cal. 443; Hoppe v. Hoppe, 4 Cal. Unrep. Cas. 569, 36 P 389, 104 Cal. 94, 37 P 894; McHarry v. Stewart, 4 Cal. Unrep. Cas. 408. 35 P 141; Shawnee Nat. Bank v, Van Zant. (Okl.) 202 P 285. (2) Foreclosure of the widow's mort[a] Where she owns only an un- gage may be had only after the divided interest (1) in the land, it youngest child becomes of age. was held that an oil and gas lease Hoppe v. Hoppe, supra. (3) The on lands of which a widow owns an right to a probate homestead as disundivided or half, and the other tinguished from one established by half of which belongs to the chil- declaration is not the subject of an dren, a part thereof being occupied absolute sale as a distinct estate. by the family as a homestead, is In re Moore, 57 Cal. 437. (4) Unnot void because executed by the der Code Civ. Proc. § 1474, a wife widow alone, but conveys her in- succeeding to a homestead right by vidual interest in the oil and gas the death of her husband may disprivileges, subject to the rights of pose of the property by will free those occupying the premises as a from any claim of the creditors of homestead. Compton V. People's either herself or husband. In re Gas Co., 75 Kan. 572, 89 P 1039, 10 Fath, 132 Cal. 609, 64 P 995. (5) LRANS 787. (2) Where a husband But the surviving wife may mortdevised an undivided one-half in-gage her interest in the homestead, terest in the homestead to the wife, although the mortgagee or purchaser and the other one-half interest to at the mortgage sale would have no the minor children, with directions right to possession of any part of that the land should not be sold the homestead during the minority until the youngest child became of of any of the children. Shawnee age, a mortgage executed by the Nat. Bank v. Van Zant, supra; Hopwife in which she was joined by pe v. Hoppe, supra. her second husband under Rev. L. (1910) § 1143. was valid as to the wife's interest in view of 88 8405 and 8406, but could not be foreclosed until the youngest child became of age. Hogan v. Reiker, (Okl.) 206 P 203.

13. Compton v. People's Gas Co.. 75 Kan. 572, 89 P 1039, 10 LRANS 787; Hogan v. Reiker, (Okl.) 206 P 203; McCreary v. McCorkle, (Tenn. Ch. A.) 54 SW 53.

15. Bailly V. Farmers' State Bank, 35 S. D. 122, 150 NW 942.

16. Bailly v. Farmers' State Bank, 35 S. D. 122, 150 NW 942. See generally supra §§ 259-297.

22. Shepard v. Browning, 156 Ky. 194, 160 SW 950.

23. Clay v. Wallace, 116 Ky. 599, 76 SW 388, 25 KyL 820.

24. Gregory v. Oates. 92 Ky. 532, 18 SW 231, 13 KyL 761.

25. Cal. Dickey v. Gibson, 113 Cal. 26, 45 P 15, 54 AmSR 321; Revalk V. Kraemer, 8 Cal. 66, 68 AmD 304.

Kan.-Hannon v. Sommer, 10 Fed. 601, 3 McCrary 126 (declaring the law in Kansas).

Minn. McCarthy v. Van Der Mey, 42 Minn. 189, 44 NW 53: Holbrook v. Wightman, 31 Minn. 168, 17 NW 280.

Nebr.-Hill V. Naylor, 99 Nebr. 791, 157 NW 922; Nebraska L. & T. Co. v. Smassall, 38 Nebr. 516, 57 NW 167.

Wash.-Moyses v. Nyboe, 90 Wash, 257, 155 P 1036.

[a] In Texas (1) a surviving husband may convey, mortgage, or execute a deed of trust on his homestead, although he has minor children residing with him thereon. Hensel v. International Bldg. Assoc., 85 Tex. 215, 20 SW 116: Bateman v. Pool, 84 Tex. 405, 19 SW 552; Dawson v. Holt, 44 Tex. 174; Jones v. 17. Spencer V. Schell, 107 Tex. Harris, (Civ. A.) 139 SW 69: 44, 173 SW 867 [aff 142 SW 111]. Echols v. Jacobs Mercantile Co., 38 [b] Where the wife owns an es- 18. Lake v. Page, 63 N. H. 318, Tex. Civ. A. 65, 84 SW 1082; Lee v. tate by the entirety, she may convey 1 A 113; Green v. Crow, 17 Tex. 180. British, etc., Mortg. Co., 25 Tex. it after the husband's death inde19. Garwood v. Garwood, 244 111. Civ. A. 481, 61 SW 134; Thompson pendent of homestead rights, as she 580, 91 NE 672; Chicago, etc.. R. Co. V. Robinson, (Civ. A.) 56 SW does not hold it as a widow but v. Kelly, 221 Ill. 498, 77 NE 916; 578; Moore V. Poole, (Civ. A.) as an absolute owner. McCreary v. Sloniger v. Sloniger, 161 Ill. 270, 43 25 SW 802. (2) And this is so, McCorkle, (Tenn. Ch. A.) 54 SW 53. NE 1111; Anderson V. Smith, 159 even though the estate is insolvent. [c] In Michigan it has been held Ill. 93, 42 NE 306; Lagger v. Mu-Jones V. Harris, supra. (3) The that if the widow acquires title to tual Union Loan, etc., Assoc., 146 Ill. exemption of the homestead is in the homestead not under the statute 283, 33 NE 946; Best v. Jenks, 123 favor of the father, the head of the but by purchase from the admin- | Ill. 447, 15 NE 173. family, and does not inure to the istrator and afterward sells and benefit of the children on the death abandons it, when the children beof their mother. Martin v. McAlcome of age, no question can arise lister, 94 Tex. 567, 16 SW 624, 56 as to the validity of her corveyLRA 585; Jones v. Harris, supra ance. Drake V. Kinsell, 38 Mich. (4) A fortiori he may convey it if 232. he is the only remaining constituent of the family. Burcham v. Gann. 1 Tex. Unrep. Cas. 332. (5) If the homestead is community property, the surviving husband has the pow er to sell or mortgage such homestead to pay the community debts without administration upon deceased wife's estate (Wiener v. Zweib, 105 Tex. 262, 141 SW 777, 147 SW 867: Martin v. McAllister, supra; Ashe v. Yungst, 65 Tex. 631; Sanger v. Moody, 60 Tex. 96; Dawson v. Holt 44 Tex. 174; Hartman v. Thomas, 37 Tex. 90; Dever v. Selz, 39 Tex. Civ.

20. Weatherford v. King. 119 Mo. 51, 24 S 772 [overr Miller v. Schnebly, 103 Mo. 368, 15 SW 435]. See Coile v. Hudgins, 109 Tenn. 217. 70 SW 56; Tucker v. Tucker, 100 Tenn. 310,❘ 45 SW 344; Nelson v. Theus, 5 Tenn.

14. Cal.-Hodge V. Norton, 133 Civ. A. 87 (in all of which it is Cal. 99, 65 P 123.

Fla.-Wilson V. Fridenburg, 19 Fla. 461.

Kan.-Compton v. People's Gas Co.. 75 Kan. 572, 89 P 1039, 10 LRANS 787.

Mich. Gerber v. Upton, 123 Mich. 605, 82 NW 363.

Mo.-Gorman v. Hale, 109 Mo. A. 176. 82 SW 1110. Tenn.-Shelton V. Hurst, 16 Lea

470.

See also supra § 493.

held that "after assignment" the
widow may convey or encumber her
homestead right). Compare Grier v.
Canada, 119 Tenn. 17, 107 SW 970.
[a] Thus it was held that the
widow could convey her unallotted
homestead after the children become
of age, notwithstanding it existed
in a tract of land which was in ex-
cess of the quantity and value to
which a homestead was limited un-
der the law. Weatherford v. King,
119 Mo. 51, 24 SW 772 [overr Miller

not convey by deed to a third person his estate of homestead in premises, the fee of which was in the heirs of his wife before the homestead had been assigned or set off, so as to vest the grantee of the deed to the right to have the homestead set off and assigned to him.20

[ 547] 3. By Surviving Child or Heir. Minor children for whom a homestead has been set apart have no power to convey or encumber it.27 But an heir of a homesteader may, even during the lifetime of the surviving spouse, convey his vested remainder in the homestead, where such surviving spouse is given only a life estate. 28

30

or

[§ 548] 4. Rights Acquired by Grantee Purchaser.29 Where the homestead may be transferred or encumbered by a survivor, the grantee or purchaser under a foreclosure of the encumbrance takes only such interest as the survivor possessed, free from all debts and liabilities of decedents except such as would have been enforceable against the homestead prior to such conveyance or encumbrance.33 In a conveyance or encumbrance by the widow the grantee acquires

34

whatever interest the widow possessed, and so does a purchaser at a sale on foreclosure of the encumbrance.35 The widow can confer by conveyance or mortgage of the homestead no greater rights than she herself possesses. Where, how

36

87

ever, the homestead cannot be transferred or encumbered by a survivor, the grantee or encumbrancer takes nothing.39

[ 5482] N. Partition-1. In General. The right of a survivor40 or of an heir or devisee11 to ask for a partition of the homestead depends on the statutes of the particular jurisdiction, 2 and sometimes also on the particular circumstances of the particular case, such as the minority of the children, the occupancy of the premises by the survivor or survivors, or the consent of the homestead beneficiaries."

44

46

43

45

[549] 2. During Occupancy of Homestead Beneficiary. Under some homestead provisions17 during the use and occupancy of the premises as a homestead by the survivor or survivors to whom the homestead inures, 18 the homestead cannot be partitioned at the suit of the surviving spouse,

41 SE 593; Schuyler v. Hanna, 31]
Nebr. 307, 47 NW 932; Simms V.
Hixon, (Tex. Civ. A.) 65 SW 36 [aff
65 SW 35].

29. See also supra §§ 321-331.
See supra §§ 545-547,

30.

31. 256.

Dayton V. Donart, 22 Kan. See also supra §§ 545-547; and cases infra this section.

32. Dayton V. Donart, 22 Kan. 256; American Bonding Co. v. Logan, (Tex. Civ. A.) 167 SW 771.

A. 558, 87 SW 891), (6) or to re-
imburse himself for payment of the
community debts, although they
constitute no lien on the homestead
(Martin V. McAllister, supra [rev
(Civ. A.) 61 SW 522]: Watts v. Mil-
ler, 76 Tex. 13, 18 SW 16; Fagan
V. McWhirter, 71 Tex. 567, 9 SW
677; Ashe v. Yungst, 65 Tex. 631:
Stone v. Jackson, 109 Tex. 385, 210
SW 953 [rev (Civ. A.) 155 SW 9601).
(7) So also the husband has the
same power in respect to dealing 33. Dayton v. Donart, 22 Kan.
with the community property where 256 (if the property or any interest
the wife is not dead but insane. therein is sold while the property
Pierce v. Gibson, 108 Tex. 62. 184 is still occupied as a homestead
SW 502, 1 ALR 1675. (8) And un- by the widow and any one or more
der
a statute which provides that, of the minor children, title to such
where the wife dies or becomes property or interest passes to the
insane leaving a surviving husband purchaser free from all debts ex-
and child or children, the husband cept prior encumbrances given by the
shall have the exclusive manage- intestate and wife and taxes, and
ment, control, and disposition of the debts for purchase money and im-
community property in the same provements, although the property
manner as during her lifetime or may afterward be abandoned as a
insanity, and that, after qualifying homestead by the widow and her
as community administrator, he shali children).
have the right to control, manage,
and dispose of the community prop-
erty in such manner as may seem
best for the interest of the estate,
he may sell the community home-
stead although there is no commu-
nity debts. Green v. Windham, (Tex.
Civ. A.) 230 SW 726. (9) Power
of surviving wife to sell or mort-
gage community homestead see supra
545 note 12.

26. Best v. Jenks, 123 Ill. 447, 15 NE 173.

27. Miller v. Marx, 55 Ala. 322; Yeates v. Donalson, 147 Ga. 335, 94 SE 465.

[a] Rule applied. Beneficiaries of a homestead who executed a mortgage to the homestead property, and who did not set up the homestead as a defense to the proceedings to foreclose the mortgage, are not estopped from setting up the homestead against the purchaser at the foreclosure sale, in an action of ejectment brought by the purchaser beneficiaries against the who remained in possession of the homestead property. Nor are they estopped on account of any partition between proceedings plaintiff and the beneficiaries, or any of them, as a result of which the homestead property or some part thereof was awarded to the plaintiff. Yeates v. Donalson, 147 Ga. 335, 94 SE 465.

34. Cal.-Hodge v. Norton, 133 Col. 99. 65 P 123; Hoppe v. Hoppe, 104

Cal. 94, 37 P 894.

Ill-Gibbs v. Gerdes, 291 Ill. 490,

126 NE 155.

Kan.-Compton v. People's Gas Co.. 75 Kan. 572, 89 P 1039, 10 LRANS 787.

50.

Mo.-Dennis v. Gorman, 233 SW

Nebr.-Pulver v. Connelly, 93 Nebr. 188. 139 NW 1014.

Okl-Hogan v. Reiker, 206 P Shawnee Nat. Bank v. Van 202 P 285.

49

[a] Where a deed of trust is executed by a widow upon а homestead in which she has a community interest, a sale thereunder gives to the purchaser an eanal estate and equal possessory rights with the surviving children. Grothaus v. De Lopez, 57 Tex. 670.

[b] If the widow and an adult son mortgage the homestead, their interest may be sold on foreclosure, subject to rights of occupancy in the widow and minor children. Harle v. Richards, 78 Tex. 80, 14 SW 257.

36. Dennis v. Gorman, (Mo.) 233 SW 50.

[a] Thus the rights of one, to whom the widow of the deceased owner of a homestead quitclaimed, terminated, so far as the homestead right was concerned, upon the widow's remarriage. Dennis V. Gorman, (Mo.) 233 SW 50. See also supra § 486.

37. Gibbs v. Gerdes, 291 111. 490, 126 NE 155.

[a] Life estate.-Where the mortgage was strictly foreclosed, such foreclosure, where there was no redemption, operated only to pass

to

a mortgagee the widow's life estate. Gibbs v. Gerdes, 291 Ill. 490, 126 NE 155.

[b] Lease.-The widow cannot lease her homestead for a period longer than her life. Henion V. Vavrik, 126 Ill. A. 292.

[c] Effect of warranty of title.Where a widow to whom a home203; stead had been assigned mortgaged Zant, her estate. the mortgage covered

S. D.-Bailly v. Farmers' State
Bank, 35 S. D. 122. 150 NW 942.

Tenn.-Grier v. Canada, 119 Tenn.
17, 107 SW 970; Shelton v. Hurst,
16 Lea 470.

Tex-Grothaus V. De Lopez, 57
Tex: 670.

[a] Rule applied. Grantee is vested with the widow's third interest and may take possession and hold as tenant in common with the surviving children and is liable to account for their share of the rents and profits. Bailly V. Farmers' State Bank, 35 S. D. 122, 150 NW 942.

[b] Conveyance to heirs; merger. -Where a widow's right of dower is extinguished by reason of the preponderance in value of her homestead right, and she conveys her homestead right to her children, who are the only heirs of the owner and entitled to the land after the expiration of the widow's rights, the entire fee to the land merges in them. Hardy v. Atkinson, 136 Mo. A. 595, 118 SW 516.

609. 27 NE 70.
[a] Such consent becomes bind-
it is necessary to
ing only when
sell all the land in which a home-
Cribben v. Crib-
stead is claimed.
ben, 136 Ill. 609, 27 NE 70.
47. See statutory provisions.
48. Persons succeeding to home-
stead rights see supra §§ 470, 490,
498.

49. Hall v. Fields, 81 Tex. 553, 17 SW 82; Powell v. Naylor, 32 Tex. Civ. A. 340, 74 SW 338.

50

the surviving minor children or their guardian,' adult children, 51 heirs, 52 or anyone else,53 except as otherwise provided by statute,54 or under such exceptional circumstances as may be within the purview of the statute.55

[§ 550] 3. During Minority of Children. Under most homestead laws the homestead premises are not subject to partition during the minority of any of the children to whose benefit the homestead inures,5 56 unless circumstances appear making it the duty of the court, for the benefit of the minor, to decree a partition or order the interest of the minor to be sold;57 and the general rule applies whether suit for partition is brought by the heirs, 58 or by the widow59 or her grantee. Right of purchaser from survivor. Where by statute the homestead estate vests absolutely in the widow and minor children, a purchaser from one of the children after his reaching majority is entitled to partition.61 Under some statutes the surviving husband may after the death of his wife

50. Stevens v. Wilbourn, 88 Miss 514, 41 S 66; Powell v. Naylor, 32 Tex. Civ. A 340, 74 SW 338.

[a] In Mississippi, so long as the widow continues to occupy the homestead premises, they are not subject to partition at the suit of the minor children. Stevens v. Wilbourn, 88 Miss. 514, 41 S 66; Martin v. Martin, 84 Miss. 553, 30 S 523. [b] In Texas no partition may be had so long as the premises are occupied by a guardian of minor children under order of court. Hall v Fields. 81 Tex 553, 17 SW 82: Adair v. Hare, 73 Tex. 273. 11 SW 320: Hudgins v. Sansom, 72 Tex. 229, 10 SW 104.

a

60

dispose of his community interest in the homestead regardless of the fact that the children of the marriage are minors, and the purchaser's right to partition cannot be postponed until the children become of age or acquire a homestead of their Own. 62

63

[ 551] 4. On Application of Heir or Devisee. Under the rule in many jurisdictions that the survivor or survivors are entitled to a homestead by survivorship as well against the heirs as against the creditors of decedent, it is generally held that during the continuance of the occupancy of the premises as a homestead by the survivor or survivors there can be no partition of the homestead at the suit of the heirs, or their assigns,65 and it has been held that this is so, although there are no creditors of decedent, and irrespective of the value of the homestead.67 If, however, a surviving spouse declines to exercise the right of oecupancy, the homestead may become subject to partition, if children of decedent parent took any use or occupancy, can hold the home-1311; Nicholas v. Purczell, 21 Iowa stead free from partition but the minor must, through his or her guardian, obtain permission from the county court to use and occupy the land, and without such an order the homestead is not established, and it may be partitioned at the instance of any one owning a part of it. Powell v. Naylor, 32 Tex. Civ. A. 340. 74 SW 338: Gaines v. Gaines, 4 Tex Civ. A. 408. 23 SW 465. (2) It has been said that the constitutional provision does not forbid a partition of the estate which preserves entire the homestead right of the surviving constituents of the family, which it is the purpose of that provision to protect, for instance, when the homestead is set apart to the minors, or set apart subject to the right of occupancy of the minors and their guardian. Hudgins v. Sansom, 72 Tex. 229. 10 SW 104.

[c] Order of court construed.-In suit involving the rights in the rural homestead of Thomas J. Hare and his minor children, Pearl D. and Ruby Hare, after the death of their mother who had a community interest in the same, the judgment pro56. Smally v. Chisenhall, 108 Ala. vided that the "said tract of two 683, 18 S 739: Hoppe v. Hoppe, 104 hundred acres shall not be parti-Cal 94, 37 P 894: Trumbly v. Martell, tioned so long as it remains in law the homestead to Thos. J., Pearl D, and Ruby Hare, or any one or more of them, during which time the said three defendants last named are entitled to the possession thereof." It was held that the judgment must be construed to mean that the homestead should not be partitioned so long as the father alone or with his minor children should use and occupy it as such, or so long as a probate court, in the event of the father's death, would permit the guardian of the minors named to use it as a homestead Adair v. Hare, 73 Tex. 273, 11 SW 320.

51. Powell v. Naylor, 32 Tex. Civ. A. 340, 74 SW 338

61 Kan. 703, 60 P 741 [rev 9 Kan. A.
364, 58 P 1201; Hafer v. Hafer, 33
Kan. 449, 6 P 537; Brewington V.
Brewington, 211 Mo. 48, 109 SW 723;
Quail v. Lomas, 200 Mo. 674, 98 SW
617; Rhorer V. Brockhage. 86 Mo.
594 [aff 13 Mo. A. 397]; Rhorer v.
Brockhage, 15 Mo. A. 16.
57.

Hoppe v. Hoppe, 104 Cal. 94,

37 P 894.

[a] Reason for rule is predicated on the inherent character of the estate and the purposes it subserves under the policy of the homestead laws. Brewington v. Brewington. 211 Mo. 48, 109 SW 723: Rhorer v. Brockhare. 86 Mo 544. See also supra § 2.

[b] During the occupancy of the widow and minors. the homestead [a] In Texas, where no guardian cannot be partitioned until the younghas ever been appointed for the es- est child becomes of age. at least tate of a minor and he resists par- unless the interests of the minors tition of the parental homestad | clearly demand it. Hopne v. Hoppe, sought by suit of his adult brothers 4 Cal. Unrep. Cas. 569. 36 P 389. and sisters, proceedings should be suspended until the county court should appoint a guardian and determine whether the guardian should be permitted to occupy and use the homestead for the use of his ward Osborn v. Osborn, 76 Tex. 494, 13 SW 538.

58. Brewington v. Brewington, 211 Mo 48, 109 SW 723.

59.

Quail v. Lomas. 200 Mo. 674.
98 SW 617: Hufschmidt v. Gross, 112
Mo. 649. 20 SW 679: Beckner v. Mc-
Linn. 107 Mo. 277. 17 SW 819.

60. Quail v. Lomas. 200 Mo. 674.
98 SW 617: Rhorer v. Brockhage, 13
Mo A. 397 faff 86 Mo. 5441.

61. Faircloth v. Carroll, 137 Ala.
242 34 S 182.

62. Hartman v. Thomas. 37 Tex.
90: Lee v. British, etc., Mortg. Co.,
25 Tex Civ. A. 481. 61 SW 134.
63.

See cases infra note 64. See
also supra §8 506. 510.

64. Ala-Smally V. Chisenhall, 108 Ala. 683, 18 S 739.

Ark. Hoback v. Hoback, 33 Ark. 399: Trotter v. Trotter. 31 Ark 145. Ga.-Holloway v. Holloway, 92 Ga. 340. 17 SE 281.

viving husband or wife, by either Iowa.-Dodds v. Dodds, 26 Iowa

265, 89 AmD 572.

Ky-Lancaster v. Redding, 16 KyL 147, 26 SW 1013; Gasaway v. Woods, 9 Bush 72.

Miss. Dickerson v. Leslie. 94 Miss. 627, 47 S 659; Moody v. Moody, 86 Miss. 323, 38 S 322.

N. H.-Batchelder v. Fottler, 62 N. H. 445 [overr Spaulding's App., 52 N. H. 336].

Okl.-Holmes v. Holmes, 27 OkL 140, 111 P 220. 30 LRANS 920; Miller v. Hassman, 24 Okl. 381, 103 P 577; Funk v. Baker, 21 Okl. 402, 410, 96 P 608. 129 AmSR 788 [cit Cycl.

80

v.

Tenn.-Simpson v. Poe, 1 Lea 701.
Tex-McDougal V. Bradford.
Tex. 558, 16 SW 619; Childers
Henderson, 76 Tex. 664, 13 SW 481;
Hudgins v. Sansom. 72 Tex. 229, 10
SW 104; Gilliam v. Null. 58 Tex. 298;
Pressley v. Robinson, 57 Tex. 453;
Harris y. Reed, 47 Tex. 523: Hoefling
v Thulemeyer, (Civ. A.) 142 SW 102:
Cox v. Olliver. 43 Tex. Civ. A. 110,
95 SW 596; Flynn v. Hancock, 35
Tex. Civ. A. 395, 80 SW 245.

Vt.-Keyes v. Hill, 30 Vt. 750.
Wis.-Voelz v. Voelz, 88 Wis. 461.
60 NW 707.

[a] Devisees.-The provision contained in Const. art 16 § 52, that a homestead shall not be partitioned among the heirs of deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same, arolies to devisees as well as heirs. Reed v. Talley, 13 Tex. Civ. A. 286, 35 SW 805.

[b] The quantity set off to the widow need not all have been occunied by her and her husband as a homestead. Hough V. Shippey, 16 Tex. Civ. A. 88. 40 SW 332.

During occupancy see supra § 549. 65. Funk v. Baker. 21 Okl. 402, 96 P 608, 129 AmSR 788.

66. Hoback v. Hoback, 33 Ark. 399 Trotter v. Trotter, 31 Ark. 145. 67. Moody v. Moody, 86 Miss. 323. 38 S 322.

[a] Reason for rule.-The limit of value placed by law on the amount of land which can be held as exempt is solely for the protection and benefit of creditors, and has no place in a consideration of the rights of the surviving widow for the occupancy of the homestead. Moody v. Moody. 86 Miss. 323. 328. 38 S 322 ("If this were not true, it might often happen that a home worth slightly more than the statutory limit would be forced on the market, and the widow compelled to abandon the home of a lifetime, beautified and made attrac tive bv the labor of her hands. endeared by a thousand tender memories of happier days, and would have naught left for the support of herself. and perhaps her helpless minor children, save the use of the

part of it by inheritance,es and the right is the same without distinction between adult and minor heirs. After abandonment of the homestead by the widow,70 the property ceases to have the homestead character and she becomes a tenant in common with the other heirs," whose rights were suspended during her occupancy, 72 and partition may then be had.73 So it has been held that, where the widow is a party to a suit for partition among the heirs and fails to claim her homestead right, it is barred by the decree."

Reversionary right of children. Where under the homestead laws land descends to the widow for the use of herself and the children during her life or widowh od with reversion in fee to the children, the reversionary right of the children cannot during occupancy of the homesteader be partitioned

$2,000 exempted by statute").

63. Ashe v. Yungst, 65 Tex. 631. C9. Ashe v. Yungst, 65 Tex. 631. 70. See supra § 519. 71. Orman v. Orman, 26 Iowa 361; Bell v. Schwarz, 37 Tex. 572. Tenancy in common see supra §

or sold for partition.82

After the death of the widow, partition is permissible among the heirs provided all the children have arrived at majority.83

Lands in excess of homestead limit. Under the statutes of Missouri "the rights of the heirs to a partition of all the estate in the lands of their ancestor in excess of the homestead is as sacred and well secured as the homestead right.''84 Proceeds of condemnation proceedings. plying the general rule against partition at the suit of heirs,8 the proceeds of homestead property taken under condemnation proceedings cannot be apportioned between the widow and heirs. over her objection,86 she being entitled to have it reinvested in another homestead, in which all parties should have the same interests as in the homestead condemned.87

[§ 552] O. Liability of Homestead for Debts of Decedent-1. In General. Under some of the homestead laws, the homestead property passes to the beneficiaries exempt under all circumstances from the debts of decedent.88 But in many juristhe class named).

[a] Partition subject to home-partition the widow's homestead stead. The statutes expressly provide for the partition of premises inherited by heirs subject to the estate of homestead. Brokaw V. Ogle, 170 I11. 115, 48 NE 394; Stunz v. Stunz, 131 I11. 210, 23 NE 407; Holman v. Gill, 107 111. 467; Merritt v. Merritt, 97 Ill. 243.